6 Conn. Cir. Ct. 73 | Conn. App. Ct. | 1969
The defendant filed a motion to quash the second count of the information, charging her with the offense of disorderly conduct in violation of § 53-175 of the General Statutes.
Due process “requires that a penal statute ‘he sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.’ ” State v. Hurliman, 143 Conn. 502, 509. In United States v. Woodard, 376 F.2d 136, 140, the court said, citing United States v. Petrillo, 332 U.S. 1, 8: “The Constitution does not require impossible standards of specificity in penal statutes. It requires only that the statute convey ‘sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ ” Explicit enunciation of the due process requirement was expressed in Connally v. General Construction Co., 269 U.S. 385, 391, where the court said: “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” See State v. Smith, 46 N. J. 510. But there may be rationally permissible disagreement in certain cases. A court may rely upon the doctrine of permissive uncertainty where long usage may give otherwise imprecise language sufficiently clear meaning. In State v. Muolo, 119 Conn. 323, 325, our Supreme Court said: “It is incumbent upon any court, in the consideration of an attack upon the constitutionality of a legislative act, to approach the question with great
We turn now to a consideration of how the courts and the legislatures have treated the problem of vagueness and uncertainty in the context of disorderly conduct statutes such as the one here in question.
In State v. Reynolds, 243 Minn. 196, the court held that the crime of disorderly conduct is purely statutory; it did not exist at common law and, therefore, the basic elements of the crime must be found in the language of the statute. We have likewise held that “ [d] isorderly conduct was not an offense at common law.” State v. Robinson, 23 Conn. Sup. 430, 431, 1 Conn. Cir. Ct. 292; see 12 Am. Jur. 2d, Breach of Peace and Disorderly Conduct, § 28.
Four recent Connecticut cases deal explicitly with our disorderly conduct statute. In State v. Robinson, supra, the defendant was charged with disorderly conduct in telephoning the female complaining witnesses from his own home and applying obscene language to them in the privacy of their homes. We set aside the conviction upon the ground that the term “in any place” as used in the statute means a public place. In State v. Avnayim, 24 Conn. Sup. 7, 10, 1 Conn. Cir. Ct. 348, 351, we sustained the conviction for disorderly conduct where the de
Both in the Avnayim and Petty cases, we relied heavily upon People v. Harvey, 307 N.Y. 588, a leading New York case, to sustain the constitutional validity of our disorderly conduct statute. But following the decision in People v. Harvey, supra, the New York legislature enacted a new statute on disorderly conduct.
So, however forceful and persuasive the arguments may be compelling a determination in favor of unconstitutionality of our disorderly conduct statute, the court must bear in mind the admonition in United States v. Roth, 237 F.2d 796, 797: “[I]t is not the part of responsible judicial administration for an inferior court such as ours, whatever our personal opinions, to . initiate a new and uncharted course of overturn of a statute thus long regarded of vital social importance and a public policy of wide general support.” Earlier, in State v. Muolo, 119 Conn. 323, 326, our Supreme Court said that while “any court has power to pass on the constitutionality of a statute and it may be its duty to declare it invalid,” nevertheless “a court should take such action only upon the clearest ground or where the rights of litigants make it imperative that it should do so. Otherwise it is better ... to leave the decision to our higher courts, to which the matter may be brought by appeal or otherwise.”
In recognition of this court’s modest jurisdiction and having in mind the foregoing considerations, the motion to quash the second count of the information must be and is denied.
“See. 53-175. disorderly conduct. Any person who, by offensive or disorderly conduct, annoys or interferes with any person in any place or with the passengers of any railroad car, ferry boat or other public conveyance, or who disturbs or offends the occupants of such railroad car, ferry boat or public conveyance, by any disorderly conduct, although such conduct may not amount to an assault or battery, shall be fined not more than two hundred dollars or imprisoned not more than six months or both.”
“A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 1. He engages in fighting or in violent, tumultuous or threatening behavior; or 2. He makes an unreasonable noise; or 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or 4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or 5. He obstructs vehicular or pedestrian traffic; or 6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or 7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.” 3ST.Y. Pen. Law § 240.20.
For example, see § 250.2 of the Model Penal Code (Proposed Official Draft, 1962), which reads as follows: “(1) A person is guilty of disorderly conduct if, with purpose to cause public incon-