590 A.2d 494 | Conn. Super. Ct. | 1989
The defendant was arrested pursuant to a warrant charging him with inciting injury to persons or property in violation of General Statutes §
The defendant has filed a motion to dismiss the information on two grounds. First, he claims that §
The defendant's attack is predicated upon the first and the
Ordinarily, a trial court's analysis of a constitutional attack on an otherwise validly enacted statute begins *527
with certain basic underlying principles of statutory construction. The most fundamental of these is that the accused is entitled to have a penal statute construed strictly in his favor. State v. Whiteman,
These principles, which have retained their vitality, were recently reiterated by the Connecticut Supreme Court in State v. Breton,
Section
A vagueness attack may take two forms. First, the accused may argue that the particular statute is void for vagueness by virtue of its applicability to the particular facts at issue (the "as applied" analysis). State
v. Proto, supra, 696; State v. Pickering,
Whenever a portion of a statute appears to be void for vagueness on its face, thereby threatening to produce a chilling effect on the remainder of the statute which might otherwise be valid, Connecticut courts, like the federal courts, have, whenever possible, applied a "judicial gloss" to the statute to save it from fatal infection and inevitable invalidation. See State v. Schriver,
supra, 464. Such judicial gloss may be found in recognized methods of statutory construction including references to judicial opinions involving the same or similar statutes of other jurisdictions, the common law, legal dictionaries or treatises that may be necessary to ascertain a statute's meaning. State v. Proto, supra, 699;State v. Eason,
Thus, the elixir of judicial gloss may be extracted from numerous sources and applied liberally to the whole surface of the statute. In State v. Cavallo,
In reading the statute at issue here, it is apparent that there is an implicit requirement that the accused intend to cause injury to or destruction of public or private property. Each of the words that the legislature chose to include in the statute clearly connotes the volitional component to accomplish a specific result. As theCavallo court stated, "[a]s long as intent is a necessary element of the crime under §
Thus, the requirement of intent that must be read into §
Judicial gloss may also be found in the decisions of other jurisdictions. The New Jersey courts have upheld a substantially similar statute against a
The United States district court for Connecticut agreed with this principle when it stated that advocacy of action rather than advocacy of ideas may be restricted without violating
In the present case, when the warrant is distilled down to fit the language of the statute, the result is that the warrant charges the accused with soliciting and/or inciting the manufacture of a police bomb that was intended to be used to damage a police car.6 This act, in fact, solicited the violation of General Statutes §
The court's rationale in Turner v. LaBelle, supra, is helpful for analysis. The court first condemned the statute in the following language. "The most vulnerable part of the statute is that part which penalizes praising or justifying. These acts necessarily look to past events, and the statute might be read as penalizing praising the past event without any intention to suggest future conduct, or any such effect. But we do not believe that the legislature intended the statute to be read, or that a Connecticut court would so interpret it." Id., 446.
In rehabilitating the statute otherwise vulnerable to a vagueness challenge, the court stated that "[g]enerally it makes sense to ascribe a particular separate meaning to each of a limited number of words used disjunctively in a statute. But where the legislature, out *533 of a desire to assure that no artful semanticist will escape the burden of the statute, employs, indiscriminately, seriatim, a number of similar words, some virtually identical, others differing slightly, the better practice would appear to be to let each help to define the other. Accordingly we read `justifies' and `praises' in the sense of `encourages,' `advocates' and `incites.' Thus read, the statute is neither overbroad nor vague, nor does it, though precise, penalize constitutionally protected conduct." Id.
This approach seems to be in accord with the approach of state courts. See State v. Horne,
While this analysis may be sufficient to rescue the statute from its constitutional illness, this court prefers to revive the statute on a slightly different basis. The court does not agree with Turner that the acts classified in the statute "necessarily look to past events." They can and should be given a limited or narrowing construction, thus supplying additional judicial gloss to the tarnished surface. For instance, words of praise or justification uttered contemporaneously with the act of injury or destruction may be and usually are calculated to stimulate and to enliven the actor to the successful completion of his crime. This seems to be a more pragmatic way to apply the gloss.
As noted above, the doctrines of overbreadth and vagueness are so closely related that they are sometimes functionally indistinguishable and often are merged in the process of statutory construction. State v. Proto, supra, 706. *534
"The essence of an overbreadth challenge is that a statute that proscribes certain conduct, even though it may have some permissible applications, sweeps within its proscription conduct protected by the
The approach to an overbreadth analysis is very similar to the approach to a vagueness claim. While, as discussed above, the court will attempt to apply judicial gloss to correct a vagueness defect, in the area of overbreadth, the court employs a slightly different technique with essentially the same practical result. For instance, in State v. Proto, supra, 709, the court applied a "narrowing" construction to the relevant statutory language to ensure that the reach of the statute was not impermissibly broad. So too in Broadrick v. Oklahoma, supra, 617, where in considering a "Proto-type" statute, the court refused to invoke the doctrine of overbreadth where a "limiting construction" could be placed *535 on the challenged language. Thus, while gloss is applied to a statute to reclaim it from the obscurity of vagueness, a narrowing construction is applied to a statute to restrict its overbreadth.
In the present case, the defendant claims that the statutory terms "justifies" and "praises" are overbroad because they would, for example, punish someone for commending another for breaking a courthouse window. Such a construction of the statute on its face would, of course, punish clearly protected conduct. The application of a narrowing construction delivers it from the fatal sweep of facial overbreadth.
As the final step in the process, the actual words employed by the defendant as contained in the affidavit accompanying the search warrant must be analyzed. This is not a case where words constitute mere advocacy of the use of force or violence without more. See Brandenburg v. Ohio,
In Samuels v. Mackell,
In Yates v. United States,
In United States v. Dellinger,
The obvious question is whether the violent act which the statute proscribes must have been committed in order to constitute a violation of the statute. In Dellinger,
the court answered this question in the negative *537
when it observed that the causal relationship between the inciting and the violent act is sufficient to satisfy the test. The violent act need not be committed. The court reached the same result with regard to the word "urge" as used in the statute. The court said that under its dictionary definition of "persuasion" the term as used is unrelated to its potential for success in producing the desired action but embodies the required relation of expression to action. Thus, "urging or instigating" as used in the statute puts a sufficient gloss of propulsion on the expression so that it can be carved away from the comprehensive protection of the
Particularly analogous to the facts in the present case is the Dellinger court's statement that even if the overt act could be a speech which only was a step toward one of the proscribed elements in the statute, taking these elements as goals, "the statute adequately establishes the required relationship to action . . . ." Id. In the present case, we have a situation where the defendant solicited Tolmoff to fabricate a pipe bomb. This solicitation was a step on the way to the goal of making a pipe bomb which of itself is an illegal act.
In conclusion, for the foregoing reasons, the defendant's challenge to the constitutionality of §
While the defendant also asserts as a separate ground for dismissal that the supporting affidavit contains a material misstatement and does not contain sufficient reliable information to constitute a violation of the statute, it is believed that the foregoing discussion disposes of this claim and therefore obviates the need for separate analysis on this issue. For the foregoing reasons, the motion to dismiss is denied.