THE STATE OF WASHINGTON, Respondent, v. BRANDON J. SMITH, Petitioner.
No. 54067-5
En Banc.
July 14, 1988.
James R. Miller, Prosecuting Attorney, and Hugh K. Birgenheier, Special Deputy, for respondent.
Lenell Nussbaum on behalf of Washington Appellate Defender Association, amicus curiae for petitioner.
DURHAM, J.—This case addresses the constitutionality of Washington‘s “harassment” statute. Enacted in 1985 with the aim of preventing “acts and threats which show a pattern of harassment designed to coerce, intimidate, or humiliate the victim“,
A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury in the future to the person threatened or to any other person; or
(ii) To cause physical damage to the property of a person other than the actоr; or
(iii) To subject the person threatened or any other person to physical confinement or restraint; or
(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.
The harassment statute is part of a multifaceted remedial scheme the Legislature established to protect citizens from harmful harassing behavior. Two other criminal harassment statutes, already in place at the time
Petitioner Brandon Smith challenges this remedial scheme. He complains that
I
The stipulated facts are as follows: In the midafternoon of May 25, 1985, Smith appeared at the home of Pam
Smith next pushed Romine toward and then into his car, where he pointed out to her a rifle lying on the backseat. He made further death threats, including a threat to blow up Romine‘s house. Romine broke free, ran to her own car, and drove away.
Romine drove to her fiance‘s workplace and after conversing with him, drove to a nearby shopping center where Smith again confronted her. Romine told him to stay away from her and said she had called the sheriff. Smith responded that he was not afraid of the sheriff and would kill the sheriff and blow up Romine‘s house. Romine then filed a complaint with the sheriff‘s office and deputies arrested Smith later in the day.
Smith was charged with simple assault, criminаl trespass and harassment. The Lewis County District Court dismissed the harassment charge on vagueness grounds but proceeded to trial on the other counts, resulting in convictions. On the State‘s appeal, the Lewis County Superior Court reversed the dismissal of the harassment charge and remanded to the District Court for trial, resulting in a conviction on that count as well. The harassment conviction was then affirmed by the Superior Court and, on discretionary review, by the Court of Appeals. State v. Smith, 48 Wn. App. 33, 737 P.2d 723 (1987). We granted the petition for review.
II
The due process doctrine of “void for vagueness” Smith invokes has two central principles. First, criminality must be defined with sufficient specificity to put citizens on
We do not apply this doctrine casually, however. In recognition of the Legislature‘s constitutional lawmaking role, see
Smith‘s complaint about
A
Before explaining more fully our rejection of Smith‘s challenge, we will discuss briefly some conceptual difficulties we have in accepting his argument. Smith asks this court to hold that what is “lawful” is not something a person of common understanding can comprehend. And he asks us to declare that the concept of “lawfulness” fails to provide minimal guidelines to prevent arbitrary or discriminatory law enforcement. The former assertion would stand
Rather than persuading, therefore, Smith‘s argument puts us on our guard. Justice Cardozo long ago observed approvingly “the tendency of precedent to extend itself along the lines of logical development.” B. Cardozo, The Nature of the Judicial Process *34 (1921), reprinted in Selected Writings of Benjamin Nathan Cardozo 107, 118 (M. Hall ed. 1947). Taking in view Smith‘s argumеnt, and within it our own holdings and opinions, we now ask: Is it truly within the limit of our cases’ logic that the concept of “lawfulness” may not be employed as part of a well stated criminal statute?
We will now make clear, if we have failed to do so before, that the answer to this question is “no“. None of our decisions, fairly read, establishes that the concept of “lawfulness” is inherently unconstitutionally vague. We have found the concept problematic in some cases only because of the context in which it has been used.
The importance of context is illustrated in our recent decision in State v. Aver, 109 Wn.2d 303, 745 P.2d 479 (1987). There, we upheld against a vagueness challenge a statute proscribing obstruction оf a “lawfully operated train“. Focusing on the context in which the word “lawfully” was used, we determined that the statute is sufficiently definite to put citizens on notice as to what conduct it forbids.
RCW 81.48.020 forbids a definite course of conduct—willfully obstructing, hindering or delaying the passage of a train. The proscribed activity being clearly stated, the defendants cannot claim constitutional confusion as to the lawfulness of the operation of the train.
To a great extent, Smith stands in a very similar position as did the defendants in Aver. He cannot deny that
B
Turning to the applicability of the vagueness doctrine in this case, we address first the doctrine‘s notice principle. The basic rule is familiar: a statute will be deemed unconstitutionally vague if “persons of common intelligence must necessarily guess at its meaning and differ as to its application.” State v. White, supra at 98-99; Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926).
People of common intelligence need not always guess at what a statute means by “lawful“. Presumptively available to all citizens are the statements of law contained in statutes and in court rulings. Our cases make clear the important relevance of statutory and common law to the meaning of the concept of “lawfulness” as used in legislative enactments.
In State v. Miller, 103 Wn.2d 792, 698 P.2d 554 (1985), for example, we upheld against a vagueness challenge a statute criminalizing assault with intent to prevent or resist “lawful apprehension or detention“. Former
Statutеs and common law similarly have informed the interpretations we have given some of our most fundamental and widely used written laws. For example, in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), we explicated the phrase “without authority of law” as it appears in
Generally speaking, the “authority of law” required by
Const. art. 1, § 7 in order to obtain [telephone] records includes authority granted by a valid, (i.e., constitutional) statute, the common law or a rule of this court.
Gunwall, at 68-69. And in State v. McCullum, 98 Wn.2d 484, 495, 656 P.2d 1064 (1983), we invoked a statutory definition of self-defense to negate the “unlawfulness” element of criminal intent.
Conversely, we have held void criminal statutes employing the concept of “lawfulness” when we hаve been unable to locate sources of law giving substance to that concept. For example, in State v. White, supra, we criticized a “stop-and-identify” statute which criminalized the refusal or failure, “without lawful excuse“, to supply information “lawfully required” by a public official:
[T]he term “lawful excuse” is nowhere defined in
RCW Title 9A , and a citizen who is being questioned must necessarily guess as to whether his claim of privilege not to answer under the Fifth Amendment or pursuant to any other case or statutory exemption will be a “lawful excuse“.
White, at 100. A similar absence of identifiable sources of law animated our decisions in other “lawful excuse” cases. See State v. Richmond, supra at 248; State v. Hilt, supra at 455.
Threats of bodily injury also lawfully may be made when circumstances justify violent action in self-defense. The use of force against another, including causing injury, is privileged when necessary to protect persons or property.
There may be other situations, ascertainable from statutes, the common law, or perhaps other “legal process“, see Gunwall, at 69, in which a person lawfully may engage in the conduct that
to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.
Colten v. Kentucky, 407 U.S. 104, 110, 32 L. Ed. 2d 584, 92 S. Ct. 1953 (1972). Thus, we will not void a legislative enactment merely because all of its possible applications cannot be specifically anticipated. Cf. United States v. Carpenter, 791 F.2d 1024, 1029 (2d Cir. 1986) (rejecting suggestion “that one application of a statute cannot admit of another application not raised in the first case“), aff‘d by a divided court, 484 U.S. 19, 98 L. Ed. 2d 275, 108 S. Ct. 316, 320 (1987).
We are especially unwilling to do so when, as here, a defendant‘s conduct falls squarely within the statute‘s prohibitions. At no time during this litigation has Smith ever suggested that he had any “lawful authority” to engage in the conduct that resulted in his conviction, or even that he was uncertain about his authority. On the facts before us we cannot conceive of any such authority. Thus, we cannot accept Smith‘s invitation to nullify this important legislative enactment “because of a doubt as to the precise congressional purpose in regard to hypothetical cases that may never arise.” Robinson v. United States, 324 U.S. 282, 286, 89 L. Ed. 944, 65 S. Ct. 666 (1945); see also Parker v. Levy, 417 U.S. 733, 755-57, 41 L. Ed. 2d 439, 94 S. Ct. 2547 (1974).
Because there are readily ascertainable sources of law giving meaning to the phrase “lawful authority” as it appears in
C
Smith also claims that the harassment statute should be voided because “the term lawful is inherently subjective“. This argument rests on the second due process principle the vagueness doctrine enforces, that criminal convictions should not be based on “arbitrary or ad hoc determinations of criminality.” State v. Richmond, 102 Wn.2d at 244. The United States Supreme Court has identified “the requirement that a legislature establish minimal guidelines to govern law enforcement” as the more important of the vagueness doctrine‘s dual elements, noting that “[w]here the legislature fails to provide such minimal guidelines, a criminal statute may permit ‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.‘” Kolender v. Lawson, 461 U.S. 352, 358, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 574-75, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974)).
Because, as discussed above, we find that the meaning of “lawful authority” as used in
Consider, for example, the laws authorizing violent acts in self-defense. We do not consider these laws to be unconstitutionally vague merely because someone who acts within their scope may be arrested, prosecuted and even convicted for his actions. Rather, we tolerate the burdens law enforcement places on the individual who has rightfully defended himself in order to ensure that he has not violated clear statutory prohibitions.
Nor are we bothered by the element of indefiniteness the self-defense laws create in the offenses—harassment being one—to which these laws apply. The importance of prеventing and punishing harassment and other violent behavior outweighs our concern that the exceptional instances where the proscribed behavior is justified will be unfailingly protected. See H. Hart, at 130.
III
As we hope our analysis makes clear, our holding in this case is entirely consistent with our prior applications of the vagueness doctrine to statutes incorporating the concept of “lawfulness“. This is not to say that today‘s holding follows inexorably from the logic of all of our opinions, however. Particularly striking is the facial conflict between some of the language in Bellevue v. Miller, 85 Wn.2d 539, 536 P.2d 603 (1975), with the result we reach here. We thus feel that some further comments on that case, and on the doctrinal difficulties that explain its untoward generality, are in order.
The void-for-vagueness doctrine, as often has been noted, has the ironic quality of itself being ill defined. See Recent Development, 56 Wash. L. Rev. 131, 140 (1980). Though many cases recite the doctrine‘s essential purposes and principles, few offer any cogent reasoning that is properly generalizable to later applications. The problems this
First, the vagueness doctrine‘s lack of cogency creates the impression, if not the reality, that courts use it to act “as an open-ended authority to oversee the States’ legislative choices in the criminal law area . . .” Kolender v. Lawson, supra at 374 (White, J., dissenting). As a result, courts may bе doing to legislatures precisely what the vagueness doctrine prohibits legislatures from doing to citizens: leaving to guesswork the determination of what conduct is permissible, and thereby interfering with rights conferred by the constitution. Cf. State ex rel. Gunning v. Odell, 58 Wn.2d 275, 278, 362 P.2d 254 (1961) (“The right of a legislative body to exercise its legislative powers will not be invaded by the judicial branch of government.“), modified, 60 Wn.2d 895, 371 P.2d 632 (1962). The presumption of constitutionality that attaches to legislative enactments seeks to minimize this problem.
While the problem identified above results because the vagueness doctrine‘s principles are too indefinite, a second problem arises because the reasoning employed in particular applications of the doctrine ring too definitively. As Professor Amsterdam has observed, vagueness decisions often cite cases “not dealing with statutes of similar wording or even of similar sphere of operation“. Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 71 (1960) (authored by Anthony Amsterdam). While one vice of this approach is that it explains too little, see Note, 109 U. Pa. L. Rev. at 70–71, another is that it proves too much, producing seemingly far-reaching declarations that particular statutory phrasings are unacceptable in all contexts.
The use to which some of the language in Bellevue v. Miller, supra, has been put presents a classic example of
The passage does not accurately reflect our holding in Miller, however, and would remain a misleading departure from our reasoning in this case were we to ignore it here. A more complete appreciation of our opinion in Miller makes clear that what Miller deemed unconstitutionally vague was not the concept of unlawfulness itself, but the perceptual notiоn of what conduct manifests a purpose to act unlawfully. See Miller, at 544 (“A determination of whether particular activity manifests an unlawful purpose or creates alarm is entirely dependent upon a police officer‘s opinion . . .“). (Italics ours.) As discussed more fully above, we simply cannot approve the notion that the concept of “lawfulness” may never properly be employed in a statute to define criminal conduct.3
Smith has failed to demonstrate unconstitutional vagueness in the harassment statute beyond a reasonable doubt. We cannot accept his argument that the phrase “without lawful authority” is inherently vague,4 and we do not discern indefiniteness of a constitutional character caused by the context in which the phrase is used in
BRACHTENBACH, DOLLIVER, DORE, ANDERSEN, CALLOW, and GOODLOE, JJ., concur.
The majority fails to follow this court‘s clear line of cases in which we held unconstitutionally vague statutes with the same infirmities as the Anti-Harassment Act of 1985. Furthermore, the majority follows an approach that we soundly rejected in State v. Richmond, 102 Wn.2d 242, 683 P.2d 1093 (1984), by attempting to save the act by listing some laws informing potential defendants when there is “lawful authority” to threaten harm, but failing to identify the meaning of that term. The majority adds vagueness to the vagueness doctrine by seeming to overrule settled rulings by this court, and then failing to acknowledge it is doing so, leaving this area of law entirely unsettled.
Because the section of the antiharassment act under which petitioner was convicted is unconstitutionally vague, I would reverse.
Smith challenges
This court has held that a statute is presumed constitutional unless its unconstitutionality is proven “beyond a reasonable doubt.” Maciolek, at 263. This standard rеquires clarification, as it appears to be the same standard as for conviction of crimes, which serves to protect innocent people from conviction on too little evidence. “[T]he reasonable-doubt standard . . . ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.‘” In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), quoting Dorsen & Rezneck, In re Gault and the Future of Juvenile Law, 1 Fam. L.Q. 1, 26 (Dec. 1967). The relation between a statute and the constitution, on the other hand, does not involve the question of proof of facts, but is one of pure law. An unconstitutional statute is void, and the strength of the proof of facts in a given case is irrelevant to our determinations of facial constitutionality. Bellevue v. Miller, supra.
There are two main reasons for the strong presumption in favor of upholding statutes against constitutional challenges. The first is our respect for the legislative branch as a co-equal branch of government; as with the judiciary the Legislature is sworn to uphold the constitution. The second is that the Legislature speaks for the people. “Under our constitution, the legislature passes laws and repeals laws as the sole representative of the people.” Gruen v. State Tax Comm‘n, 35 Wn.2d 1, 7, 211 P.2d 651 (1949). This court is
II
“To be consistent with due process, a penal statute or ordinance must contain ascertainable standards of guilt, so that men of reasonable understanding are not required to guess at the meaning of the enactment.” Seattle v. Drew, 70 Wn.2d 405, 408, 423 P.2d 522, 25 A.L.R.3d 827 (1967). The requirement that criminal legislation be definite is premised on two considerations: (1) citizens must have notice of what conduct is criminally proscribed, and (2) vague laws permit arbitrary arrests and convictions. Bellevue v. Miller, supra; Kolender v. Lawson, 461 U.S. 352, 358, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983).
This court has repeatedly held unconstitutional criminal statutes in which criminality hinges on some conduct or motivation being “lаwful“, but there is no guidance as to what “lawful” means in the context of those statutes. In Seattle v. Rice, 93 Wn.2d 728, 612 P.2d 792 (1980), this court found unconstitutional a Seattle ordinance, which stated in part: “[a] person, who . . . enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of the premises or some other authorized person.” Rice, at 730, quoting Seattle ordinance 102843. The Rice court found this language unconstitutionally vague.
The term “lawful order” in the Seattle criminal trespass ordinance is not sufficiently specific to inform persons of reasonable understanding of what conduct is
This court has stricken statutes requiring defendants to determine, without any meaningful guidance, if they have a “lawful excuse” or “lawful purpose“. In Bellevue v. Miller, supra, this court found unconstitutionally vague a “wandering and prowling” ordinance that defined the crime in part as manifesting an “unlawful purpose“. We found the term “unlawful purpose” to be inherently subjective. Bellevue v. Miller, supra at 545. In State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982), this court found unconstitutionally vague a statute making it a misdemeanor to obstruct a public servant by failing “without lawful excuse” to provide true information “lawfully required” by a public servant. The court noted that “lawful excuse” is not defined anywhere in the statute, and a citizen must necessarily guess at its meaning. White, at 100. Similarly, in State v. Hilt, 99 Wn.2d 452, 662 P.2d 52 (1983), this court found unconstitutional a statute prohibiting bail jumping “without lawful excuse” because that term was nowhere defined in the criminal code. See also State v. Richmond, 102 Wn.2d 242, 683 P.2d 1093 (1984) (“without lawful excuse” in child support statute is unconstitutionally vague).
I dissented to this court‘s opinion in State v. Aver, 109 Wn.2d 303, 745 P.2d 479 (1987), because that opinion failed to meaningfully distinguish the Miller, Rice, Hilt, White, Richmond line of cases. Aver, at 312-14 (Utter, J., dissenting). In Aver, this court attempted to distinguish that line of cases on the ground that thе statute at issue in Aver used the term “lawful order” referring to the conduct of persons other than the accused. Aver, at 308. I continue to
In the instant case, the majority deviates even further than the Aver court from our established line of cases, and boldly acknowledges that it must “repudiate” a portion of Bellevue v. Miller, supra. See footnote 3. Unlike Aver, in which this court rested its holding on the fact that the statute was vague only with respect to conduct of others, here the statute‘s vague language refers to the accused‘s own conduct.
The majority goes much further than Aver in another respect. The statute at issue in Aver criminalized interference with “lawfully operated trains.” Although the statute itself did not define “lawfully operated“, it is possible to determine from a network of state and federal statutory and regulatory law what is required to be a “lawfully operated train.” Similarly, in State v. Miller, 103 Wn.2d 792, 698 P.2d 554 (1985), this court found the common law sufficiently defined when a citizen arrest is lawful so as to give potential defendants notice of when an assault is with intent to resist a lawful arrest. Here, the majority fails to find any statute or common law rule or rules that define when there is “lawful authority” to engage in the conduct proscribed by the antiharassment statute.
The majority attempts to define “lawful authority” by listing specific situations that might create such authority. Majority, at 9-10. That approach was rejected by this court in State v. Richmond, 102 Wn.2d 242, 683 P.2d 1093 (1984). In Richmond, this court found unconstitutionally vague a child support statute proscribing willfully omitting “without lawful excuse” to support a child. We noted that there had been prior judicial interpretation of when such lawful excuse might exist, but that it was not sufficiently specific to clarify the statute. Richmond, at 247. We further noted a limitless variety of “lawful excuses” that might result in potential defendants violating the statute “with the impression that their excuse is lawful, and only later
Similarly, lacking any clear guidelines, a prospective defendant under the Anti-Harassment Act of 1985 may believe hе or she has some lawful authority, but does not. The majority even admits that its analysis “will leave some citizens uncertain about the scope of the harassment statute‘s prohibition,” but then trivializes the harm of this predicament. Majority, at 10. It does not explain why vagueness was intolerable when this court authored Richmond in 1984, but it is tolerable today.
The majority attempts to distinguish the statute at issue from other vague statutes because the vague language is part of an “escape clause“. Majority, at 7. The lure of this distinction is superficial only. A perusal of our criminal code reveals that whether a description of an aspect of a crime is in the main description of the crime or an exculpatory еxception makes no difference. No matter how the crime is described, the burden is on the State to prove every element thereof. It is thus irrelevant that the offending portion of
Vagueness in a statute is equally intolerable if it is in the description of the proscribed conduct or an exception to the reach of the statute. State v. Hilt, supra; State v. Hill, 189 Kan. 403, 369 P.2d 365 (1962); 21 Am. Jur. 2d Criminal Law § 17 (1981). The issue is whether the statute gives sufficient notice to defendants and guidelines to law enforсement as to what conduct is proscribed.
III
I am disenchanted with the majority‘s reference to criticisms that the void-for-vagueness doctrine is in itself ill
IV
PEARSON, C.J., concurs with UTTER, J.
Notes
Also noteworthy are United States Supreme Court cases upholding statutes сontaining similar phrasings. Colten v. Kentucky, 407 U.S. 104, 32 L. Ed. 2d 584, 92 S. Ct. 1953 (1972) (disorderly conduct, defined as “refus[ing] to comply with a lawful police order to disperse“); United States v. Price, 383 U.S. 787, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966) (violating a person‘s civil rights “under color of law“).
We reject WADA‘s argument without deciding the constitutional issues it raises.