State v. MartinezState v. Martinez
- Reporters:
- , ,
- Before:
- Finley
Defendant Dennis Ray Martinez was charged with and convicted of vagrancy pursuant to
Defendant was suspended from high school on approximately September 24, 1973, and ordered not to return unless accompanied by his parents. No formal hearing was held prior to or subsequent to the suspension. However, on October 9, defendant informed the assistant principal that he did not intend to return to school.
Subsequent to October 9, defendant was observed upon school property and warned not to return during school hours. However, on November 8, defendant returned to the school during school hours to speak with another student, apparently concerning possible employment in a musical combo. Defendant did not seek permission from the school administration to speak with the student but, instead, went directly to the “study hall” where the other student was located. Upon seeing the defendant, the assistant principal summoned police who arrested defendant and cited him for vagrancy, pursuant to
9.87.010 Vagrancy. Every—
(13) Person, except a person enrolled as a student in or parents or guardians of such students or person employed by sueh school or institution, who without a lawful purpose therefor wilfully loiters about the building or buildings of any public or private school or institution of higher learning or the public premises adjacent thereto—
Is a vagrant, and shall be punished by imprisonment in the county jail for not more than six months, or by a fine of not more than five hundred dollars.
There is no indication or finding of fact that the defendant’s activities caused a material disruption of the classroom or of the educational process.
Before proceeding to the merits of defendant’s constitutional challenge, one procedural matter raised by the State must be considered,
viz.,
it is argued that this court has no jurisdiction of the case because defendant did not file a timely notice of appeal within 30 days after entry of judgment as required by ROA 1-46 (b)(1) and CAROA 46(b) (1). This 30-day requirment is jurisdictional.
State v. Miller,
67 Wn.2d 59, 406 P.2d 760 (1965);
Snohomish v. Patric,
56 Wn.2d 38, 350 P.2d 1009 (1960). The judgment was entered on July 18, 1974, and the notice of appeal was filed on August 19, 1974. According to the State, this is a period of 32 days and, thus, the notice of appeal was untimely. However, the State’s computation is erroneous because it fails to follow the mandates of ROA 1-9 and CAROA 9. These rules provide that in computing a time period within which an act is to be completed, the first day is to be excluded, the last day is to be included, and if the last day is a Saturday, Sunday, or holiday, then the act must be completed on the next business day. Thus, in the instant case, the computation should begin on July 19 and the 30th day falls on August 17, which is a Saturday. Therefore, defendant had until Monday, August 19, to timely file the notice of appeal and he did so at that time.
The constitutionality of
A vacation of a lower court judgment is essentially a neutral disposition. It constitutes neither an affirmance nor a reversal on the merits. But it does nullify — in a neutral manner — the judgment and earlier proceedings that transpired in the court from which the appeal was taken.
See DeFunis v. Odegaard,
84 Wn.2d 617, 529 P.2d 438 (1974) (Finley, J., concurring in part, dissenting in part). As such, the effect of the vacation by the Supreme Court of
Defendant’s first argument is that
We start with the proposition that “[p]rima facie, mere . . . loitering on a public way is lawful and the right of any man, woman, or child.”
Commonwealth v. Carpenter,
325 Mass. 519, 521, 91 N.E.2d 666, 667 (1950). Our prior cases make clear that a statute which simply proscribes “loitering” is impermissibly vague because the word loiter standing alone does not necessarily connote sinister or illegal activity and, thus, the ordinary citizen will be uninformed as to what types of behavior will and will not be subject to criminal prosecution.
Seattle v. Pullman,
82 Wn.2d 794, 514 P.2d 1059 (1973);
Seattle v. Drew,
70 Wn.2d 405, 423 P.2d 522, 25 A.L.R.3d 827 (1967). Nearly
Therefore,
The only qualifier that conceivably lends certainty to
A determination of whether particular activity manifests an unlawful purpose or creates alarm is entirely dependent upon a police officer’s opinion, not only with respect to what conduct the ordinance prohibits, but also with respect to the suspected import of the activity observed. Such extravagant police discretion is plainly improper. . . . Legislation which purports to define illegality by resort to such inherently subjective terms as “unlawful purpose” or “alarm” permits, indeed requires, an ad hoc police determination of criminality. Such legislation is vague because there can be no prior notice of what conduct an individual officer will find sufficiently suspicious to warrant arrest. The potential for arbitrary’ anddiscriminatory law enforcement under such legislation cannot constitutionally be tolerated.
In Papachristou v. Jacksonville, supra, the Supreme Court likewise made clear that such a provision cannot withstand constitutional scrutiny. In striking down a statute which prohibited, inter alia, “wandering or strolling from place to place without any lawful purpose or object” the court commented cryptically: “The qualification ‘without any lawful purpose or object’ may be a trap for innocent acts.” Papachristou v. Jacksonville, supra at 164. Numerous other cases have similarly invalidated statutes purporting to prohibit loitering without a lawful purpose or business. See Balizer v. Shaver, 82 N.M. 347, 481 P.2d 709 (1971) (loitering on or near school premises without lawful business); State v. Grahavac, 52 Hawaii 527, 480 P.2d 148 (1971) (wandering about streets without lawful business); United States v. Kilgen, 431 F.2d 627 (5th Cir. 1970) (wandering from place to place without lawful purpose); Portland v. James, 251 Ore. 8, 444 P.2d 554 (1968) (unlawful to roam upon streets or public places without lawful purpose).
Therefore, we think it plain that
The State urges that the statute can be rendered sufficiently precise by construing the term “without a lawful purpose” to proscribe entry upon school premises or public premises adjacent thereto unless there is a legitimately related school purpose for such entry.
We adopted the State’s proposed construction in
State v.
The most recent pronouncement from the Supreme Court grappling with the delicate task of accommodating First Amendment interests with the unique characteristics of the educational environment makes clear that our prior interpretation of Tinker was excessively narrow. Thus, in Grayned v. Rockford, supra at 121 n.49, the court indicated in plain terminology that schools are not to be analogized to jails for purposes of determining whether First Amendment freedoms may be asserted on school premises. More importantly, the court affirmatively enunciated at least the minimum rights of members of the general public to engage in expressive activity on the streets and sidewalks adjacent to schools:
Just as Tinker made clear that school property may not be declared off limits for expressive activity by students, we think it clear that the public sidewalk adjacent to school grounds may not be declared off limits for expressive activity by members of the public. But in each case, expressive activity may be prohibited if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
Grayned v. Rockford, 408 U.S. 104, 118, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972).
In short, the general public has, at the minimum, the right to engage in expressive activity on the streets and sidewalks surrounding schools, at least if material disruption of the classroom is not occasioned thereby.
Moreover, some expressive activity, assuming it is not disruptive of the educational process, may be constitutionally protected on the campus itself depending upon such considerations as whether the expression is to occur on a large college campus or a smaller secondary school, and whether the activity is to take place within the confines of a building or on the areas of the campus open generally to the public. See Grayned v. Rockford, supra at 120 n.45 2 ; Jones v. Board of Regents, 436 F.2d 618 (9th Cir. 1970) (right to distribute handbills on college campus); New Times, Inc. v. Arizona Bd. of Regents, 110 Ariz. 367, 519 P.2d 169 (1974) (right to sell newspapers on college campus); State v. Besson, 110 N.J. Super. 528, 266 A.2d 175 (1970) (right of teacher to hold “vigil of protest” in school parking lot). See also Grody v. State, 278 N.E.2d 280 (Ind. 1972); Wright, The Constitution On The Campus, 22 Vand. L. Rev. 1027 (1969); Comment, The University And The Public: The Right Of Access By Nonstudents To University Property, 54 Cal. L. Rev. 132 (1966).
No other alternative constructions have been offered by the State which would simultaneously save the statute from vagueness and accommodate First Amendment protected activity. Nor are we able to perceive any adequate constructions that reasonably could be superimposed upon the statute without attempting a wholesale revision of it. This, of course, we decline to do because drafting statutes is a legislative and not a judicial function.
Bellevue v. Miller, supra.
Therefore, we hold that
Even were we to adopt the State’s proposed construction to save
Employing the State’s proposed construction of
The State contends that the defendant’s activities in the instant case do not present a substantial First Amendment question. The State appears to argue that the validity of the above classifications, therefore, must be evaluated by the rational basis test and not by the strict scrutiny test that is traditionally applicable when First Amendment rights are involved. Assuming arguendo, without deciding, that the strict scrutiny test is inapplicable to this case because the defendant himself did not engage in protected First Amendment activity,
3
we are nevertheless convinced that
In the past 3 years, the rational basis test has undergone a striking and profound metamorphosis.
See generally
Gunther,
Foreword: In Search, Of Evolving Doctrine On A Changing Court: A Model For A Newer Equal Protection,
86 Harv. L. Rev. 1 (1972). In contrast to prior years when the Supreme Court accorded extreme deference to statutory schemes and the classifications therein, unless of course a fundamental right or suspect classification was at issue, the court has of late evinced a marked willingness to strike down dubious classification schemes even when the rational basis test is employed. See,
e.g., Reed v. Reed,
404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971);
James v. Strange,
407 U.S. 128, 32 L. Ed. 2d 600, 92 S. Ct. 2027 (1972);
Jimenez v. Weinberger,
417 U.S. 628, 41 L. Ed. 2d 363, 94 S. Ct. 2496 (1974);
Eisenstadt v. Baird,
405 U.S. 438,
The new approach to the rational basis test focuses upon the question of whether the means are sufficiently related to the ends sought to be achieved by the statute in question. Certain cases may arise where the older minimal level of scrutiny is still appropriate, as where the issue involves the alleged inequality of expenditures of finite resources in social welfare programs. See, e.g., Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970), and the explanation thereof in Jimenez v. Weinberger, supra. But here the interest is more substantial since it involves a penal statute with the ultimate sanction of incarceration. Under such circumstances, the invigorated rational basis test as exemplified in Reed v. Reed, supra; Stanton v Stanton, supra, et cetera should be employed. The essence of this test is that a classification must rest upon some difference that has a fair and substantial relation to the object or purpose of the legislation.
The State contends that the purpose of
However, we cannot blithely assume that employees and parents will not be disruptive but that everyone else will be. “Predictions about imminent disruption .. , involve judgments appropriately made on an individualized basis, not by means of broad classifications, . . .”
Police Dept. of Chicago v. Mosley,
408 U.S. 92, 100-01, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972). Indeed, both experience and common sense demonstrate the untenability of
For instance, teacher strikes and concomitant picketing on or around the school premises are far from unknown.
Mead School Dist. 354 v. Mead Educ. Ass’n,
85 Wn.2d 140, 530 P.2d 302 (1975). Yet, even if such picketing becomes violent and disruptive of the educational environment, the teachers will be immune from punishment under
In addition, under the construction proposed by the State,
In invalidating
Since
Notes
This provision now appears in subsection 11 of
The court commented as follows:
“Different considerations, of course, apply in different circumstances. For example, restrictions appropriate to a single-building high school during class hours would be inappropriate in many open areas on a college campus, just as an assembly that is permitted outside a dormitory would be inappropriate in the middle of a mathematics class.” Grayned v. Rockford, supra at 120 n.45.
This is essentially a question of standing to assert the rights of others. However, even given the premise that one’s own behavior is not constitutionally protected, it does not necessarily follow that such a person is barred from arguing that the statute is unconstitutional because of its infringement on the rights of others. Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972). See also Sedler, Standing To Assert Constitutional Jus Tertii In The Supreme Court, 71 Yale L.J. 599 (1962); Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970). Unfortunately, the point has escaped meaningful analysis in the briefs.