*1 HAWAII, Plaintiff-Appellee, STATE OF MILLER, Defendant-Appellant ROY JOHN
No.
September 26, 1972. C.J., Abe, Marumoto, Richardson, Kobayashi, JJ. Levinson *2 RICHARDSON, OF BY OPINION THE COURT C.J. Miller tried circuit Defendant-appellant was in the court guilty of the second circuit and found 727-1, nuisance” violating the “common Miller, at Roy statute. The read: “That complaint John Makawao, Maui, Olai, Makena, County Puu District of Hawaii, August, did day State of on the 17th nude, plainly offensive or openly appear which was public, thereby committing hurtful to the the offense nuisance, Ha- common in violation of section waii Revised Statutes.” vice officers dressed at trial reveal that five facts citizen, fishermen, a local proceeded on from report for nude August looking
to Puu Olai beach on others arrested and six apрellant sunbathers. officers among a of nude bathers. group constitutionality of section challenges the
Appellant Statutes, provides: Hawaii Revised endanger- of common The offense nuisance health, doing, safety or or ing of the public personal causing or promoting, maintaining continuing or vexatious, offensive, annoying and or plain- what is or against outrage ly public; public tends morality; or common morals, directly corruption being honesty good habits of the same people; authority by law: without or justification ; As, for . . . example: behavior, or indecent lewdness or lascivious
Open exposure; and its to this application hold its terms
We defendant, is constitutional. Grahovac, in State v.
This court reasoned 527, 534-35, 480 funda “[i]t clearly define be proscribed mental that penal havior, this, uncertainty an failing definitional denies guaranteed accused ‘due of law’ 14th I, and Art. Amendment Federal Constitution 2§ of the Constitution of (citations omitted).” Hawaii unconstitutionally vague if it
A statute is inform “sufficiently subject those who are explicit render them liable to it what conduct on their part will Co., Const. Connally its General penalties.” 385, 391 (1926). recently
This court has decided that the nude on a beach is under the punishable indecent of the common nuisance exposure provision *3 (1) exposes statute if the defendant himself (2) others, may by it seen and public place (3) where be under gen- circumstances that a trier of fact could infer a community’s to offend the eral intent of the defendant morality. State propriety, sensе of Rocker, (1970). v. nar- find that Hawaii Revised Statutes
We 727-1 § a supra, supplies warning sufficient to rowed conscientious citizen that nude in view plain choosing to use the beaches of state anyone of this “com- reasonably by the proscribed is unlawful conduct mon nuisance” statute. conform a to requires in question statute measured a standard conduct to comprehensible his common any exposure understanding. It is 727-1, but by HRS body is proscribed human which § dis- “indecent.” Defendant’s which is only exposure a form of indecent nudity is patently play fairly he was forewarned. against which meaning that the contention We defendant’s reject unascertainable, thereby rendering it un- of this statute is Fourteenth constitutionally vague violation of the States Amendment United Constitution. urges that is over- Defendant-appellant 727-1 reach, unconstitutional, it tends broad in its thus because free- constitutionally the exercise of suppress protected doms. given in the present
This court finds that the facts for over- summary case invalidation of HRS breadth would be inappropriate. relate to con- ordinance applicable parts the communication of ideas. The United
duct
not to
distinction between
Supreme Court has drawn the
States
may regulate,
offensive conduct which the state
immunity
a higher degree
is accorded
speech, which
O’Brien,
U.S.
regulation.
from
See United States v.
purports
may challenge
A defendant
freedoms, al
First Amendment
regulate or proscribe
overbroad оr
vague,
be neither
may
though
is de
If the statute
applied
otherwise invalid
him.
may
applied
not be
respects,
of these
ficient
one
Cincinnati,
U.S.
anyone.
Coates v.
White,
Accord, Good
.J.)
(dissenting opinion
Wilson,
(1972)
Philip defendant-appеllant. Attorney, K. Ching, Deputy County
Ernest C. plain tiff-appellee. KOBAYASHI, J.,
DISSENTING OPINION OF LEVINSON, J., WITH WHOM JOINS I dissent. challenges the of Section
Appellant Statutes, Hawaii provides: Revised which endanger- common offense of nuisance doing, health, ing public safety or or personal continuing causing maintaining or or promoting, offensive, vexatious, annoying what or or plain- ly outrage against or hurtful to the is a public; morality; or common or tends morals, directly corruption same honesty, and habits good people; Penal Code was quite clearly sought offensive disturb 2 The convey a common [ing] present punish in which his rests message four-letter case is reversed. That peace . . upon appellants’ the fact of .” distinguishable the asserted Appellant’s epithet. quiet conviction public. cоmmunication.” section The Court any conduct consisted of offensiveness neighborhood from Cohen prohibits only violating said Cohen, ‘conduct’ “maliciously supra California, words Cohen “[t]he of the California harmless . 18. conviction . the State . wilfully display used . . . *5 6
being without authority or justification by law: As, ; . . example:
Open behavior, lewdness or lascivious or indecent exposure;
The facts of this case nearly identical to those that confronted this court v. Rocker, State Haw. P.2d In that case the issue was whether the defendant’s activity sunbathing in the nude on a — beach—created common nuisance under the same
statutory provision here, as is applicable 727-1. court in recognized necessary Rocker that the elements cоnviction for indecent could not be exposure determined from the face of the statute. “HRS § states, unlike statutes of most indecent ex- incorporates posure as an example legislature what the defined has to constitute common nuisances. The statute does specifically delineate the elements of the of in- crime decent exposure . . . .” 52 Haw. at 687. P.2d In construing the statute the court held that “the elements of the crime of indecent exposure the prosеcution prove must in order against to establish a prima facie case the defendants are that (1) them- expose defendants selves, may be seen (2) public place where others and under circumstances that a trier of fact gеneral could infer a intent of to offend the defendants community’s propriety, sense and morality.”
at 690-91. case,
Unlike the instant of challenged was not I find the statute to be Rocker. in direct violation of due is uncon- law. It stitutionally no vague provides on its facе because it notice toas what conduct and unconstitu- prohibited tionally broad because it authorizes the punishment constitutionally protected conduct.
VAGUENESS *6 527, Grahovac, Haw. v. in State 52 stated This court vague “Tal law of 535, 148, (1971), 153 480 P.2d demands when of ‘due process’ short meaning falls is a what person notice to fair gives neither for adjudging fixed standards nor prescribes prohibited con- As to what accused.” stands guilt person when Court Supreme States notice the United stitutes adequate if unconstitutiоnal a criminal statute is has directed that who “sufficiently inform those explicit is not it subject what, them render their will part to it conduct on Const. v. General Connolly . . . liable to its .” penalties 385, Co., U.S. 269 statute, no are, the
There in the words of operative Sеction precisely, set forth. More guidelines adequate clear any is is devoid of ascertainable standards. “offensive or regarded people that conduct some statute forth hurtful to the as set plainly public,”1 not so regarded аnd as is complaint, contained in totality verbiage others. The to create its own “licenses the effectively jury v. 242, Lowry, Herndon in each case.” standard vague, Thus, impermissibly the statute (1937) . 263 his to conform that it requires “not in the sense normative but comprehensible an imprecise conduct to of con standard, that no standard rather in the sense but result, intel ‘men of common at all. As duct is specified meaning.’ Connally necessarily guess at ligence must its Co., Coates 391.” U.S. v. General Construction (1971) Cincinnati, by this court been made meaningful attempt has No court’s con- Section This limit define properly 727-1. necessary to prove of the elements in Rocker struction same infirmi- exposure2 subject crime of indecent attacking "defendant restrictеd argues that 1 The state admittedly vaguity of Section [sic] HRS, ” “is because words ‘offensive public’ disjunctive.” forth in the set ties as the language of the statute itself as discussed above. Without adequate forth, standards set who can say what would “offend the cоmmunity’s common sense propriety, and morality”? Rocker, supra, Haw. at I 691. adhere to the position vague that such and broad language not only denies the accused violator of adequate notice such as to comply with proсess, due but leaves “to the executive and judicial branches too awide discretion in its application.”3
OVERBREADTH activity proscribed by Section is not limited to that activity enumerated in the examples. The multi- plicity meanings contained in the oрerative words the statute could well be construed so as to encompass all *7 the activity proscribed by the entire Hawaii criminal code. We are not today faced a “carefully with drawn statute not also susceptible of aрplication to protected expression.” Wilson, Gooding v. Clearly,
(1972).
activity protected by the First Amend-
ment that
“offensive”,
could be considered
“annoying”
“vexatious”,
comes within the purview of Section 727-
1. A statute from which such a resultant chilling effect on
protected activity inures cannot be upheld. See Dom-
browski v. Pfister,
The fact that I believe the statute is unconstitutional does not mean that I activity sanction such which was offensive or islature. so, that enumerated within HRS indecent forth in posure.” appellant 1971) 2 It should be 3 Taylor the court offense of common morals”) court in exposure. Rocker was Miller language statute, is similar a “tool” or in pointed this is an Selma, nuisance.” The state has not case, out example “guideline” state’s Alabama, was that he “did construing that neither language in that charged of common nuisance and is to be position case that statute. is the individual construing with F. openly the (“outrage Supp. public, "the crime defendant indecent sunbathe argued, the intent thereby committing specific exposure, sense in Rocker, indecent (S. rightfully language crime of D. as set nude, used Ala. leg nor ex However, on Hawaii’s beaches. nude activity written proscribe statute utilized such was not satisfy with the needed to due requisite specificity requirements.
I reverse would the judgment.