STATE OF NEBRASKA, APPELLANT, V. PETER M. SINICA, APPELLEE
No. 84-703
Supreme Court of Nebraska
August 23, 1985
372 N.W.2d 445
Defendants support their conclusion as to the encumbrance of their homestead by referring to language in the agreement that their offer to purchase is conditioned upon their sale of the present home before they are obligated to close on the subject property. Further, the defendants are given up to 6 months, with an option to extend for 6 months, to sell and close on their present home.
The defendants insist that if they refused to go through with the purchase and refused to sell their home, the plaintiff could commence an action for specific performance and force the defendants to accept any good faith offers on their present home; therefore, such a provision becomes an encumbrance on their property.
The fact of the matter is, of course, that plaintiff has elected to proceed in damages, which forecloses the possibility of a suit for specific performance. Therefore, whether plaintiff could have elected to bring a suit in equity is not before us, and we do not decide that issue. Litz v. Wilson, 208 Neb. 483, 304 N.W.2d 48 (1981). However, we are of the opinion that in the event such an action would have been brought, the most the court could do would be to order the purchase of plaintiff‘s house by the defendants; it could not, we believe, force defendants to sell their own home. The agreement did not constitute an encumbrance.
The judgment of the district court is correct and is affirmed.
AFFIRMED.
Laureen Van Norman, for appellee.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
WHITE, J.
This is an appeal from a decision of the district court for Lancaster County, Nebraska, in a criminal case.
Pursuant to
In its order the district court mistakenly cited the statute the appellee was charged under as
The appellee is the father of the alleged victim. The incident which gave rise to the complaint was called to the attention of the 9-year-old child‘s teacher, who questioned the child about a cut on his face. On questioning, the child revealed that his father had struck him on the face and beaten him with a belt on his buttocks and back. The police were summoned and the child was treated at a local hospital. Photographs taken by the police show the child‘s buttocks to be severely bruised. The entire surface of the child‘s backside was a deep purple color. Strap and bruise marks also appear about the child‘s back and shoulders. The child testified that the punishment was inflicted because the child had disobeyed an order from the appellee. The child was to have brought home notes from his teachers showing that all his schoolwork had been completed before leaving on a family vacation.
The State‘s exceptions are twofold: (1) That the appellee lacked standing to attack the constitutionality of the statute, State v. Groves, 219 Neb. 382, 363 N.W.2d 507 (1985), and State v. Frey, 218 Neb. 558, 357 N.W.2d 216 (1984); and (2) Even on a facial challenge the relevant statutory language, “cruelly punished,” is not vague or uncertain.
The State‘s first exception is overruled. Regardless of
The right to privacy, a fundamental right within the penumbras of the guarantees of the Bill of Rights, includes a right to freedom of choice in marriage and family decisions. Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). The Supreme Court has further recognized the fundamental liberty interest of parents in the care, custody, and management of their children. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Thus, the liberty to engage in these parental activities is protected by the due process guarantees of the fourteenth amendment to the U.S. Constitution. Id.; J. Nowak, R. Rotunda & J. Young, Constitutional Law ch. 13, § V (2d ed. 1983).
In Groves and Frey, supra, based upon the Supreme Court‘s ruling in Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982), we said that when a statute is facially challenged as to overbreadth and vagueness, “our first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Frey, supra at 561, 357 N.W.2d at 219. If the overbreadth challenge fails, “[w]e are to then examine the facial vagueness . . . .” Id. Vagueness is a constitutional vice conceptually distinct from overbreadth, in that an overbroad law need lack neither clarity nor precision and a vague law need not reach constitutionally protected activity. L. Tribe, American Constitutional Law § 12-28 (1978). However, in a footnote to Hoffman Estates the Supreme Court recognized that in making an overbreadth determination
a court should evaluate the ambiguous as well as the unambiguous scope of the enactment. To this extent, the vagueness of a law affects overbreadth analysis. The Court has long recognized that ambiguous meanings
cause citizens to ” ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.”
Hoffman Estates, supra at 494 n.6.
Under the facts of this case we find that it would be impossible to determine whether
Section 28-707(1) reads as follows:
(1) A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a minor child to be: (a) Placed in a situation that endangers his or her life or health; or (b) Cruelly confined or cruelly punished; or (c) Deprived of necessary food, clothing, shelter, or care.
We focus in particular on subsection (b). Is the term “cruelly punish” defined with sufficient definiteness, and are there ascertainable standards of guilt to inform someone of common intelligence what course is lawful to pursue? State v. Metzger, 211 Neb. 593, 319 N.W.2d 459 (1982). The term “cruelly punished” is not defined in a separate section of the statute. However, “cruel” is defined by Webster‘s Ninth New Collegiate Dictionary 311 (1985) as “1: disposed to inflict pain or suffering: devoid of humane feelings 2 a: causing or conducive to injury, grief, or pain b: unrelieved by leniency.” “Punish” is defined by the same source as “1 a: to impose a penalty on for a fault, offense, or violation b: to inflict a penalty for the commission of (an offense) in retribution or retaliation 2 a: to deal with roughly or harshly b: to inflict injury on.” Id. at 955.
In People v. Jennings, 641 P.2d 276 (Colo. 1982), the defendant, Jennings, was charged with child abuse under a statute similar to
That a distinction can be made between permissible punishment and “cruel” punishment is supported by the traditional common law rule concerning parental discipline of children. At common law the parent of a minor child or one standing in loco parentis was privileged in using a reasonable amount of force upon a child for purposes of safeguarding or promoting the child‘s welfare. Bowers v. State, 283 Md. 115, 389 A.2d 341 (Ct.App.1978); Boyd v. State, 88 Ala. 169, 7 So. 268-69 (1890); W. LaFave & A. Scott, Handbook on Criminal Law § 52, at 389-90 (1972); Restatement of Torts (Second) § 147(1); Paulsen, The Legal Framework for Child Protection, 66 Colum. L.Rev. 679 (1966). While at common law the precise test of what constituted permissible force varied from jurisdiction to jurisdiction, see Annot. 89 A.L.R.2d 396, as a general proposition, so long as the chastisement was moderate and reasonable in light of the child‘s age and condition, the misconduct being punished, the kind of punishment inflicted, the degree of harm done to the child and other relevant circumstances, the parent or custodian would incur neither civil nor criminal liability, even though identical behavior against a stranger would be grounds for an action in tort or prosecution for assault and battery or a similar offense. See W. Prosser, Torts § 27, at 136-37 (4th ed. 1971); LaFave & Scott, supra.
641 P.2d at 278-79. Quoting the Maryland Court of Appeals in Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978), the Colorado Supreme Court observed: ” ‘Since the contours of the common law privilege have been subject for centuries to definition and refinement through careful and constant judicial decision-making, terms like “cruel” or “inhumane” and “malicious” have acquired a relatively widely accepted
Given sufficient definition by the common law, the term “cruelly punished” would not meet the further evil of a vague statute, that of arbitrary and discriminatory application on an ad hoc and subjective basis by policemen, judges, and juries. Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).
A number of other jurisdictions have examined the phrases “cruel punishment” and “inhumane punishment,” State v. Fahy, 201 Kan. 366, 440 P.2d 566 (1968), and Bowers v. State, supra; “unnecessary punishment or infliction of pain,” Hunter et al. v. State, 172 Ind. App. 397, 360 N.E.2d 588 (1977); “cruel mistreatment,” State v. Samter, 4 Or. App. 349, 479 P.2d 237 (1971); and “cruel maltreatment,” State v. Killory, 73 Wis. 2d 400, 243 N.W.2d 475 (1976), and have found that such phrases do not violate the due process clause of the fourteenth amendment to the U.S. Constitution nor the similar provisions in their own state Constitutions.
The appellee urged before the trial court and in his brief to this court that “cruelly punished” could encompass a broad range of disciplinary techniques. “Many people operate under the philosophy that any physical discipline is cruel, while just as many others believe that spanking is a necessary part of child rearing.” Brief for Appellee at 5.
While this assertion may be true, we believe the term “cruelly punished” is capable of an easily understood meaning as distinguished from the reasonable discipline of a child allowed by the common law and protected by the Constitution. It is a mark of statutory interpretation that in construing a statute the Supreme Court will presume that the Legislature intended a sensible rather than an absurd result. Reed v. McClow, 205 Neb. 739, 290 N.W.2d 186 (1980). Further, when a statute is constitutionally suspect, we endeavor to interpret it in a manner consistent with the Constitution. State v. Kock, 207 Neb. 731, 300 N.W.2d 824 (1981).
Since the term “cruelly punished” has been sufficiently defined by the common law and does not include reasonable disciplinary measures, the appellee‘s overbreadth challenge to
Under our analysis appellee‘s contention that
As to the alleged facial vagueness of
EXCEPTION SUSTAINED, AND CAUSE REMANDED FOR FURTHER PROCEEDINGS.
KRIVOSHA, C.J., concurring in the result.
For reasons more specifically set out in my concurring opinion filed in State v. Merithew, ante p. 530, 371 N.W.2d 110 (1985), I concur in the result in this case.