*1 indirectly what to do seemingly allowing the authorities they directly.”). cannot do showing that has to meet its burden of
The State failed had illegal wiretap illegal search been prior taint of the independent an source for the dissipated or that there was I would Circuit Court’s Accordingly, reverse the evidence. suppress all of the evidence denial of Petitioner’s motion wiretap telephone illegal of his cellular derived from conversation, including from Jona Miles the evidence obtained appellant’s police. statement join in this Judge Judge
Chief BELL and ELDRIDGE dissenting opinion.
781A.2d 851 GALLOWAY, George Jr. v. Maryland.
STATE Term, Sept. No. 2000. Appeals Maryland.
Court
Sept. *6 Córtese, E. (Stephen Public A. Asst. Defender Claudia brief) Harris, Defender, Baltimore, petitioner. on for Public (J. Graeff, Curran, Atty. Joseph Kathryn Asst. Gen. Grill brief) Baltimore, Jr., for Maryland, respon- of on Atty. Gen. dent. BELL, C.J., ELDRIDGE, and
Argued before RAKER, WILNER, RODOWSKY,* and CATHELL HARRELL, JJ.
HARRELL, Judge. Petitioner, Jr.,
George
Galloway,
serving
M.
while
a sen-
convictions,
prior
charged
was
with harassment and
tence for
(1957,
stalking, pursuant
Repl.Vol.),
to
Art.
Md.Code
121A,1
prison
§
for
he wrote from
to the victim of the
letters
1998, imprisoned.
crimes for which he was
On 26 October
pre-trial hearing was held in
for Anne
the Circuit Court
Galloway’s
County
Arundel
on
written motion
dismiss chal-
lenging
constitutionality of
on its
and as
the statute
face
hearing argument
conduct.
from
applied
his
After
parties
upon
urging,
ruling
their
the court reserved its
on
right
jury
motion.
his
to a
trial
Petitioner then waived
*
J.,
retired,
Rodowsky,
hearing
participated in
of
now
conference
Court;
being
this case while an active member of this
after
recalled
Constitution,
IV,
3A,
pursuant
participated
to Article
Section
he also
adoption
opinion.
in the decision and
of this
(1957,
Repl.Vol.,
1. The current harassment statute is Md.Code
Cum.Supp.),
§27
of
Art.
current statute was effective as
redesignated
present
§
1 October 1998 and
former
121A to be the
Therefore,
changes
§ 123. No substantive
were made otherwise.
opinion.
will
be referred to in this
agreed
with a
trial on an
proceed
bench
agreed
Galloway moved
guilty plea.
of
facts and a not
statement
of
recitation of the
judgments
acquittal
for
of
the end
took
advisement.
facts. The court
the case under
agreed
Court, in a
dated 28
opinion
written
and order
The Circuit
and mo-
denied Petitioner’s motion
dismiss
October
acquittal
regard
charge
to the
judgment
tion for
dismiss,
motion to
but
harassment. The court denied the
judgment
acquittal,
charge
as to the
granted the motion
entertaining
after
further
stalking.2
On November
counsel,
Galloway guilty of the
argument from
the court found
immediately, and
Sentencing proceeded
crime
harassment.
days
for the
Galloway was sentenced to 90
incarceration
appeal,
Special Appeals
direct
the Court of
conviction. On
Galloway’s
Galloway
conviction of harassment.
affirmed
*7
(2000).
State,
granted
Did trial court err in Petitioner’s motion to convicting and in him of harassment under Md.Code dismiss 121A, (1957, § RepLVol.), 1996 Art. 27 now codified with changes specifically minimal in the face of a unconstitutionally vague and challenge that the statute is applied on its face and as to Petitioner and overbroad did such a challenge support of a that the facts face conviction?
I. 1995, Galloway stalking kidnapping of and In was convicted (Javin), his “common law For Kimberly Javin wife.” these order, opinion judge In his 28 October 1998 written and the trial granted stated that he both the motion to dismiss and the motion for acquittal regard charge stalking. judgment of to the of At a correction; hearing judge the trial made a verbal on November denied, stalking charge, the and the as to the motion to dismiss was granted. judgment acquittal was motion for of at the crimes, incarceration years to twelve he was sentenced (MCTC). It was Training Maryland Correctional Center alleged that it was that he commit- serving this sentence while of subject of harassment which ted the crime facts, agreed statement According case. to the present letters 1997 and 11 March he sent April between addition, he sent an additional at her Javin residence. home parents to their to her care Javin’s letters 1997, Javin, her April Both before and after address. kidnapping/stalking parents, Galloway’s attorney former case, psychologist warden and a correctional and the assistant MCTC, not send letters requested Galloway that he hearing, at the 4 November prosecution, Javin. The Javin, Galloway told including people, stated that at least five stop writing these letters. directly to Javin, if called to parties agreed that By stipulation, the seriously alarmed her and testify, that “the letters would state ... [Galloway’s] on or after caused her to fear for her life date, 1999.” It was April which to be believ[ed] release she testify would that her fears agreed further Javin Galloway serving prison was stemmed from the fact that stalking kidnaping having term after been convicted of his her on March 1995. As condition sentence crimes, Galloway was to probation flowing future from those agreed parties have no contact with Javin. The also Galloway’s in his continuing Javin felt that reference letters being “to him of the law and Javin Moses the enforcer God’s and ambassador kill her [would] Jesus’s he mean[t] *8 God,” they of notwithstanding so that be with one [could] language began words containing the letters this with the “[n]othing in this is meant to a threat.”3 letter be containing benignly "religious 3. The Dissent characterizes the letters as views, expressions feelings, apologies past conduct.” Dis- and sent, 652, 660, 656, generous op. description at 677. Such a to a representative provided The letters in the contain such fault. record letters) throughout “they (repeated statements numerous times as hell”; words, you "my my they will cast into ... words are not are taught taught say me Jesus me [sic] Gods words that he to ... God and Galloway was with Ma- charged stalking. harassment and Code, (1957, ryland RepLVol., Cum.Supp.), Article statute, provides: the harassment (a) Course conduct this section “course of defined. —In persistent conduct, conduct” a pattern composed means time, of acts a period series over that evidences continuity of purpose.
(b) Applicability. any —This section does not apply activity peaceable express political intended to views or information provide to others.
(c) Prohibited Conduct. —A person may not follow another public place maliciously engage or about a in a course of conduct that alarms or seriously annoys another person:4
(1) harass, alarm, annoy person; With intent the other us, us, many things happened about and what and what I must do for us”; cooperating “your us. You are lies are about to turn on listen”; you you because refuse to "I am God's and Jesus’ ambassa- dor”; representative”; "you you "I am God’s fear me. You fear what understand”; indoctrination”; "you don't have received feminist "what happen happen”; country is about to needs to "no one in this has right stop doing.” me from what I have been The letters also passages contain such this, prison I went to because of love and lies. God knows and I society could care what I less thinks. have to answer to God for allowing prepared the devil to deceive them. You are not for what you. you lies ahead of What have sowed will come back to haunt you. express The letters also such sentiments as you your problems your until make the choice to face and solve you problems may will live in torment and do time in Prison like I forcing shaming you possibly did time.... are me [Y]ou into and you jail putting prisons____ people You have made believe your past present. lies I am about to shine serious some light only trying onto this situation.... I am to do the will of God. doing already judged. You are the will of the devil ... I have I been children, coming received life with our two will who with Jesus many angels prepared in the future. You are not for what lies ahead. Dissent, important "seriously.” although It is to note the adverb Dissent, (see 678), necessarily lip p. it includes service reference largely ignores analysis significance requirement. in its of this *9 by or on (2) to desist warning request or reasonable After person; and of the other behalf
(3) purpose. legal Without guilty is
(d) this section who violates Penalty —A not and, conviction, subject to a fine upon a misdemeanor days for not more than imprisonment or exceeding $500 added). (Emphasis or both. found stalking charge, but him of the judge acquitted
The trial
that
Galloway argued
charge.
harassment
guilty
him
the
under the
unconstitutionally vague and overbroad
§ 123 is
alternative,
and,
that the evidence is
in the
Constitution5
§ 123.
under
a conviction of harassment
support
insufficient
unconstitutional-
judge, § 123 is neither
According to the trial
opinion,
judge, in his written
or
The
ly vague
overbroad.
...
not suffer
as
does
[it]
that
123 is “constitutional
stated
meaning of the statutes have
“that the
vagueness”
from
(Citing
by judicial determinations.”
fairly ascertained
been
State,
A.2d 541
rev’d
Md.App.
Streater
(1999);
A.2d 111
Pall
352 Md.
grounds,
on other
(1997)).
trial court
State,
The Court of affirmed the Circuit Court’s judgment, agreeing language § 123 was neither vague overly nor broad and that was there sufficient evidence support a conviction of harassment. (1) opinion,
In this following: § we shall address the is 123 (2) unconstitutionally vague; unconstitutionally §is 123 overly (3) broad; and, §if 123 can withstand scrutiny, constitutional against was the evidence adduced Petitioner sufficient finding determine, support harassment. We after exam- ining legislative history § surveying 123 and the treat- courts, ment similar accorded statutes other that a reason- able standard should be read into language (c)(1) §of judicial gloss, § subsection with that 123 scrutiny.6 survives constitutional We further conclude that support the evidence is sufficient Petitioner’s conviction of harassment.
II.
Constitutionality
123
statutes,
In determining the constitutionality of
basic rule is that
presumption”
“[t]he
there is a
721, 727,
is
v. Wyand,
statute
valid. State
304 Md.
501 A.2d
(1985) (internal
omitted)
46
quotation marks
(quoting
State,
v.
Supermarkets
Corp.
Gen.
286 Md.
A. Legislative History, Laws, Maryland chapter According to the 1986 §of 123 is purpose in a following person from another
prohibiting conduct engaging from certain other certain manner or circumstances; term; defining pro- a certain under certain Act; providing a violation of this viding penalties conduct; generally apply act to certain this does added). (Emphasis relating to crime of harassment. analysis: types the differences in the two Lawrence Tribe described approaches to the Supreme evolved two distinct Court has claims; correspond to the two first amendment the two resolution of may “abridge” speech. government ways government If a in which act, analysis regulation impact of an is aimed at the communicative track, along proceed what we will call track one. On should government regulation shows that the mes- is unconstitutional unless danger,” sage being suppressed poses present consti- a "clear and falsehood, unprotected defamatory on the or other wise falls tutes distinguish those one of the lines the Court has drawn to side of open expressive privileged the first amendment from those acts scrutiny. government regulation only process minimal If a due *12 government regulation impact of is aimed at the noncommunicative act, analysis proceeds we will call track two. On that an its on what track, constitutional, expressive regulation applied even to is conduct; long unduly informa- so as it does not constrict the flow of two, ideas. On track the "balance” between the values tion and expression government’s regulatory interests is freedom of and basis, by unifying principles case-by-case guided whatever struck on a may be articulated. 12-2, supra goes explain, § note at 791-92. Tribe on to Tribe, one, regulates speech to survive track statute that based on its content "necessary the state must demonstrate that restriction is to serve narrowly compelling ... drawn to that end.” Id. state interest and omitted) (citation (alteration original). appears § in It at 798-99 one, § that the has determined that 123 rides on track while the Dissent Majority concludes it on track two. that travels regarding whether in the bill file is no documentation There state, even after that of another was modeled this statute infra, other states have used identical though, as we discuss and fashioning in harassment statutes language their similar only in statutes. The other defining in term “harass” their on Summary Report Committee is in insight provided (the bill from which the harassment House Bill 381 came) Proceedings Commit- Judicial prepared the Senate stat- Report, According proposed harassment tee. ute agencies attempts in help
will law their enforcement longstanding disputes between ongoing feuds and defuse and adults neighbors, boyfriends girlfriends, former Depart- daily which on a basis. The Baltimore Police arise departments’ virtually hands are police ment testified legislation. give this Bill 381 would law tied without House to avoid personnel opportunity extreme enforcement allow situations which occur due harassment would police potentially activity harmful diffuse many provides This bill also a vehicle for the relief legal who are without means to victims of harassment problem otherwise deal with the of harassment. (1986). H.B.
Summary Rep. Comm. on Though at 1-2 Report elaborating purpose of the helpful this on the statute, Maryland harassment it does not mention whether the of other statute was modeled after the harassment statutes states.
B. Vagueness
“ha-
argues
Petitioner
the statute’s use
the words
rass,”
“alarm,”
“annoy,”
legal purpose”
and “without
123(c)
123(b)
§
or ...
information” in
“political
views
State,
of Eanes v.
unconstitutionally vague,
light
are
even
proposi-
which
318 Md.
creating ambiguity an of constitutional which dimension leaves guessing scope.” at the statute’s Br. individuals Petitioner’s that, disagree applying at 7. We and conclude after Eanes v. State,10 §of 123 withstands constitutional language scruti- ny. void-for-vagueness applied doctrine as anal to the
ysis
penal
requires
“sufficiently
statutes
that the statute be
inform
subject
it
explicit to
those who are
to what conduct on
will
part
penalties.”
their
render them liable to its
Williams
(1992)
State,
1, 8,
(internal
v.
329 Md.
616 A.2d
omitted)
quotation
(quoting
marks
Connolly General Const.
Co.,
385, 391,
126, 127,
(1926));
The second criterion of doctrine re
gards enforcement of the statute. This rationale exists “to
provide ‘legally
ensure
criminal statutes
fixed standards
adequate guidelines
officers,
for police, judicial
triers of
enforce, apply
it
obligation
fact and others whose
is to
” Williams,
Md. at 8
penal
administer
laws.’
341).
Bowers,
at
merely because it allows for the exercise of some discretion It is part judicial of law enforcement and officials. on only susceptible is so broad as to be where patterns irrational and selective of enforcement it will vague- arm be held unconstitutional under this second of the *15 principle. ness Eanes, 464, see 122, 346; at A.2d at 318 Md. at
283 Md.
389
As a
the
of the void-for-
vagueness
application
doctrine is based on the
of the statute to
Bowers,
122,
A.2d at 346
the “facts at hand.”
If the encroaches upon rights, particularly constitutional First fundamental guarantees speech assembly, Amendment free then Id.; vagueness statute should be scrutinized for on its face.11 challenge applied 11. We have to a facial other than this standard State, rights. implicating one First Amendment See Bowers v. 283 Md. 115, 123-24, 341, (1978). jurisdictions, 346-47 389 A.2d Other howev-
617
cert.
22,
State,
624,
602,
Md.
645 A.2d
Ayers
(1995).
942,
denied,
1130,
130 L.Ed.2d
S.Ct.
inadequate notice and
Thus,
only may
“not
the two vices
pres
guidelines be
adjudicative
enforcement]
[or
insufficient
may
itself
ent,
of the statute
but in addition the indefiniteness
Bowers, 283 Md.
protected freedoms.”
inhibit
exercise of
York, v. New
Winters
(citing
So
challenge
validity
of a statute
permitting
defendant
cases,
which
marginal
though
even
the acts for
applied
may
squarely
coverage
within the
charged
he has been
er,
triggered
an ill-
have determined that this standard is
"whenever
any
alleged
infringe upon
penal
of the fundamental
defined
People
Rights.”
(citing
257,
protected under the Bill of
Id.
freedoms
Barksdale,
(1972)
Cal.Rptr.
8 Cal.3d
503 P.2d
Pillow,
(1972) (right
(privacy);
180 Colo.
Although
Special Appeals
the Court of
has determined that
a telephone
using
“annoy”
harassment statute
the words
State,
unconstitutionally
v.
vague,13
“harass” is
Caldwell
(1975)
94, 101-102,
Md.App.
337 A.2d
(addressing
(1957,
Maryland
constitutionality
Repl.Vol),
Code
Art.
555A),
previously
§27
neither it nor we have addressed
“harass,”
“alarm,”
potential vagueness of
“annoy,”
the words
legal purpose,”
“provide
“without
information” as used
states, however,
employ
123.
have addressed the
Other
phrases
ment of these words and
stalking
harassment and
fence,
on
statutes
have come out
either side of the
focusing most of
phrase
their attention on the
“intent
annoy.”
Boychuk,
M.
Are Stalking
Katherine
Laws Un
Cf.
Overbroad?,
constitutionally Vague or
88 Nw. U.L.Rev.
(1994) (“Like
laws,
stalking
many
796-97
harassment
alarm,
require
annoy,
statutes
that the offender intend to
person.
harass another
Courts
such
have treated
laws incon
(footnotes omitted)).
sistently.”
Accordingly,
urges
Petitioner
adopt
reasoning
by
us to
used
those states that have found
unconstitutionally vague,
those statutes to be
Respon
while
path
jurisdictions.
dent
advocates
taken
the contrarian
Although ultimately
jurisdictions
we shall not follow those
found
unconstitutionally
have
harassment statutes
vague,
briefly identify
tip
analysis
we
now the reasons that
our
State,
Ayers
we declined to reach the issue of whether the term
unconstitutionally vague
"harass” was
because the defendant had not
State,
charged
Ayers
been
with harassment.
335 Md.
denied,
A.2d
cert.
(1995).
L.Ed.2d 886
We stated:
"[i]f
indictment
this case
‘harassment,’
Ayers
charged
required
with the crime of
we would be
breadth,
pass upon
vagueness,
the constitutional
and claimed over
term.” Id.
undefined
*17
to which
we shall return
other direction and
reasons
short,
if
amplification.
in our
even
later
discussion
deficient,
salvageable
§
because we
arguably
123 is
otherwise
to ensure
employ
limiting
a
construction to the statute
shall
and indicates whose
provides
that it
a standard of conduct
State,
See,
Schochet v.
e.g.,
are to be offended.
sensibilities
(1990)
(stating
that
580 A.2d
Md.
..., which, if
“[gjeneral
given
statutes
their broadest
meaning, give
ques-
rise to constitutional
encompassing
most
tions,
narrowing construc-
regularly
subject
have
been the
providing
tions so as to avoid the constitutional issues” and
cases). Moreover,
limita-
examples
§
of such
123 has inherent
desist,
warning
requires
tions. The statute
reasonable
activity
express
apply
“any peaceable
does not
intended
others,” and mandates
political
provide
views or
information to
Boychuk,
“legal purpose”
activity.
be no
for the
there
Cf.
(contending
providing
exemption
an
supra, at 791-92
assuming
constitutionally protected activity or a court’s
constitutionally
legislature
prohibit any
did not intend to
state
vagueness problems (citing Rich-
protected conduct remedies
breadth,
Fallon, Jr.,
100 Yale
Making
ard H.
Sense Over
(1991))).
Lastly,
requires
§
intent
specific
L.J.
offender,
alleviating vague-
on
part
which assists
See, Williams,
Colorado court based
one
v.
People,
Bolles
As we shall discuss also “alarm,” “annoy” limiting employing the words contains language, willing limiting and we are further to read a “rea su person” Boychuk, standard into sonable the statute. Cf. judicial pra, (contending legislative at 788 that either a objective of an judge formulation standard which to harass demise). from ment would save the statutes constitutional the Norman case Moreover, in misapplies arguing Petitioner (l)(d) (l)(e) 14. The court noted that subsection addressed conduct while communications, addressed but the court determined this distinction Norman, People analysis. made no difference its constitutional (Colo.1985). 703 P.2d Supreme Court §to 123. The Colorado application for its annoy” and “intent emphasized phrases later unconstitutionally vague, but are not “intent to alarm” alone rather, language, other subsections coupled with restrictive scrutiny. withstand constitutional harassment statute the same (Colo.1988) 750 P.2d 919-20 McBurney, People See harass (stating predecessor that the sections previous statute, Bolles, not unconstitutional because were ment ‘alarm,’ ‘annoy’ and but presence “mere of the words to all forms of communica applied these words were because tion, particularized no standards to obviously which contained Bolles, (citing 541 P.2d 82- scope limit the of the offense” 83)). limiting language significant McBumey found *19 harassing telephone or only the statute to obscene confined 9—lll(l)(e) (1986), (discussing § calls. Id. 18— Colo.Rev.Stat. if, a “with person which includes that commits harassment harass, ... person, or he annoy, intent alarm another anonymously or oth person, communication with a [i]nitiates in a to harass or by telephone, erwise manner intended bodily injury damage, any or makes property threaten or comment, request, suggestion, proposal by telephone which obscene”). 143, Bryan,
Petitioner also relies on Kansas v.
259 Kan.
910
(1996)
212
of Kansas
Supreme
P.2d
in which the
Court
held
stalking
unconstitutionally vague
the Kansas
statute
due
“alarm,”
“annoy,”
to its
of
and “harass” and
use
the terms
defining
objective
Bryan,
without
an
standard.15
910 P.2d at
states,
stalking
pertinent part:
in
15. Kansas’s
statute
(a) Stalking
following
is an intentional and malicious
or course of
following
specific person
directed at a
when such
conduct
course
alarms,
seriously
annoys
person,
of conduct
or harasses the
and which
legitimate purpose.
no
serves
(d)
purposes
For the
of this section ‘course
conduct' means a
of
time,
pattern
composed
period
of conduct
of a series of acts over a
of
short, evidencing
continuity
purpose
and which would
however
distress,
person
emotional
cause a reasonable
to suffer substantial
actually
person.
must
cause substantial emotional distress to the
Constitutionally
activity
meaning
protected
is not included within the
of ‘course of conduct.'
217,
construction,
in
court’s
According
the
employed
objective
an
standard in relation to a
question
alarms,
annoys,
person,
that
or harasses
course
conduct
“following”
not in
to the
achieves
but
relation
that, follow-
Id. The Kansas court concluded
same effect.
Cincinnati,
611,
Coates
in
ing
reasoning
1686,
(1971),16
objec-
Petitioner
Price,
(5th Cir.1988), vacated,
v.
Price,
value, however,
precedential
712 F.2d
still has some
as the
apply
amended statute does not
to an offense committed before the
Act,
effective date of the
"and the former law is
in effect for
continued
Texas,
purpose.” May
(Tex.Crim.App.
765 S.W.2d
1989).
Appeals
applied
reasoning
The Court of Criminal
Texas
Price,
vagueness
712 F.2d
to concluded that the "inherent
of the
*21
a
judicial gloss
person
reasonable
standard to
rescue
Moreover,
unconstitutionality.
from
statute
threatened
the
statute,
examines,
Texas harassment
which
the decision
differently
Maryland’s statute,
from
quite
except
worded
that
Kramer,
“annoy”
In
both use the words
and “alarm.”20
Circuit, in
corpus proceeding,
Fifth
a habeas
affirmed a feder
holding
al district court’s
that
harassment
Texas
unconstitutionally
was
on
vague
its face after the Texas Court
Texas,
(Tex.
Kramer v.
Appeals,
of Criminal
The Fifth Circuit identified as a by, “Texas court refused to narrow for example, the statute holding applies writings annoy it which would unconstitutionally vague.” it ... statute as then existed causes it to be
Id.
question
20. Texas statute
states "a
commits an offense if
intentionally
by telephone
writing
vulgar,
...
he
communicates
or in
obscene,
profane,
language
or indecent
or in a coarse and offensive
by
intentionally, knowingly,
recklessly
manner and
noys
this action
an
Kramer,
recipient....”
(emphasis
or alarms the
Petitioner also relies
(1978),
Furthermore,
Appeals Oregon
in
v.
Oregon
the Court
Schwartz,
Or.App.
(Ct.App.2001),
P.3d
“repudiated”
quote
the
that the “fun-
expressly
Sanderson
gave
at issue” is that “it
no basis
damental flaw the statute
anti-social
distinguish
between
conduct which was intended
prohibited
socially
to be
tolerable conduct which could not
reasonably
subject
have been intended to be
to criminal
(internal
Schwartz, 21
quotation
action.”
P.3d at 1134
marks
Appeals Washington
22. Petitioner also discusses how the Court of
Sanderson,
adopted
reasoning
Oregon
Or.App.
the
P.2d
173/575
municipal
provision
to find a
code's harassment
unconsti-
tutionally vague
provided
guidelines
because the code
no clear
reasonably
draw a
clear line
enforcement
did "not
between the
annoying
kind of
conduct which is criminal and that which is not.”
Moore,
(1984).
City
Wash.App.
[A]n covers never, alone, standing support vagueness challenge. As a logic, insufficiently matter of conclusion that a law is provide guidance potential definite to to its violators and simply premise from enforcers does follow category too broad a of conduct. criminalizes Sec- ondly, an argument provide such cannot for an bases claim, legislature overbreadth because can a law “[a] make as ‘broad’ and inclusive as it it into chooses unless reaches ... constitutionally protected ground.” The sole limit on a constitutionality, second-guess- statute’s breadth is not our ing legislature of what could could not have deemed “socially tolerable.” (second
Schwartz, 21 in original) P.3d at alteration (citation omitted). Maryland’s
ii. Harassment Statute Vagmness Survives Analysis § vagueness Whether 123 should be tested for on its immaterial; void-for-vagueness face survives doc trine it using agreed whether is scrutinized facts of the present employing case alone imagined facts of “mar statute, ginal cases.” on applied its face and as to the *24 case, Galloway’s facts of provides warning potential fair and adequate guidelines offenders to enforcement authorities judicial when gloss of a reasonable standard is read statute, along into the with the inherent restrictions in the requirement statute and the of specific intent. agree
We reasoning Ap with the of the of Special Court State, peals in Caldwell v. and with supra, finding those states “alarm,” that the “annoy,” terms and “harass” commonly are by and, such, understood ordinary people provide fair potential notice to adequate guidance offenders and for en forcement. The of “annoy” definition is “to disturb or irritate especially by repeated acts.” Merriam Webster’s Collegiate (10th ed.1993). Dictionary 47 An alternative definition 628 Id. “to harass by quick brief attacks.”23 especially
annoy is
added).
of alarm is “to strike with
The definition
(emphasis
fear.”24 Id. at 26. The
of harass is “to
applicable definition
Id. at 529. These
definitions are
annoy persistently.”25
accepted mean
generally
as common and
qualify
sufficient to
understandings
of the
everyday
ings;
they “comport
to law
plain
and
“as
enforcement
they
words
define”
are
California,
stalking
determining
Appeal
that a
Court of
23. The
statute,
employs
of "harasses” that
the word
which includes a definition
"annoy”
vague,
unconstitutionally
noted that
is
"annoy,” was not
words,
challenged
but that
"subjective and least serious” of the
most
'sufficiently
persons
to inform
given its context ...
certain
"the word
prohibit-
intelligence
which is
ordinary
of the nature of
offense
"
Cal.App.4th
Cal.Rptr.2d
183
People Ewing, 76
90
ed.'
v.
Peterson,
(1999)
Cal.App.2d
We have discussed the
—“with
harass, alarm,
annoy
person”
the other
have deter-
—and
mined,
terms,
difficulty
applying
without
that certain
these
provided
in a protective
factual determinations
order
evidence
acknowledged
§
that inclu-
required
of intent as
123. We
protective
sion in the
order that
the defendant “threaten[ed]
provides
which
to harm” the victim
some evidence
intent
Streater,
as an
123.
352 Md. at
proven
must be
element
battery
Other have also determined that the words “annoy” commonly meanings “alarm” and understood have instance, Ewing, For Cal.App.4th definiteness.26 Cal.Rptr.2d appellate the California court deter- Employing "annoy” impor- the words "alarm” and serves another purpose tant in the statute. It has been noted that harm which "[t]he broadly upon victim offender inflicts should be as worded as possible” may so as to include "those victims who be distressed or Jordan, al., Cultural, Clinical, angry.” Stalking: Legal Carol E. et Considerations, (2000). 38 Brandéis L.J. It has been noted that harassment; multiple legal the same is true with "harassment warrants among respond perpetrators sanctions that to the differences Note, Harassment, Approach victims.” A Remedial 70 Va.L.Rev. (1984). legal response A flexible to harassment is warranted (1) diversity variety "[t]he because of harassers matches the of their victims, (2) perpe- methods” and attitudes of harassment like the "[t]he methods, easily pigeonholed.” Id. trators and their are not at 513. *26 unconstitutionally not stalking statute was mined that its others, analyzed, among doing, court first vague.27 In so the that these “annoys” and and concluded terms “alarms” the dictionary and understandable definition.” words have “a clear of Appeals at 182. of Cal.Rptr.2d The Court Ewing, words “alarms” and Kentucky that the use the determined did Kentucky stalking “stalk” in “annoys” to define the unconstitutionally vague because not render the statute whole, statute, that had “sufficient taken as definiteness prohibited.” what conduct is ordinary can determine people (Ky.App.1997) Kentucky, 947 S.W.2d Monhollen 508.130). added) § (emphasis (discussing Ken.Rev.Stat. Ann. presence of Montana determined that the Supreme Court in that statute did not “annoy” word state’s harassment of the unconstitutionally vague “an- statute to be because cause the readily “commonly meaning[ understood and noy” ]” has person average “a intelli- understood so that reasonable comprehend meaning.” ... Montana gence [its] would (1997) (discussing Mont. 943 P.2d 101-02 Nye, 283 45-5-221). § Mont.Code Ann. discussion, reviewing in the above not all
As demonstrated
is a common under
courts have felt comfortable that there
“alarm,”
meaning
“annoy,”
words
and
standing as to the
argued,
argument
It is
as it was at oral
“harass.”
often
case,
enough
words are broad
to cover
present
these
creditors,
of a
telephone calls from
as well as the actions
Norman,
See,
standard into the statute further as creditor applied ensure that 123 is not to such situations telephone performances. calls and street *27 “[ajfter provision 123 contains reasonable warn
Section
ing
by
person.”
or
on
request to desist
or
behalf
the other
added).
that such
(Emphasis
supra p.
See
609. We have held
warning
a
ensures that
the offender is aware that further
per
“other
seriously annoy[
conduct will
or
“alarm[ ]
]”
son,”
such,
and as
the offender has fair notice
he
she
Eanes,
463,
may
to
L.Ed.2d 98 Johnson v. 648 N.E.2d Requiring request may that a to desist delivered have an 28. even important requiring more function. One author has noted that a request stop "may that the defendant contact function as a constructive statute, supplement provides by to the since it for a mechanism which heard, voice victim's can be contrast to much of the law on violence, negates sexual assault and domestic which far too often Jordan, supra victim’s voice.” note at 577.
(Ind.Ct.App.1995) (determining that because “the State must engagement in a prove repeated continuing course of against arbitrary conduct militates enforcement” of Indiana’s statute). stalking requiring In addition to a warn reasonable 123(a) desist, ing § also “course of conduct” defines conduct, requiring persistent pattern “a of a composed Thus, period series of acts over a of time.” 123 has two acts, separate provisions requiring repeated helping to buffer potential vagueness. against
Additionally,
specific
§ 123 has a
requirement—
intent
harass, alarm, or annoy
person.”
intent
the other
“[w]ith
repeatedly
requirement,
We
have determined that such
may
it
while
not be able alone to save a statute from constitu-
can
infirmity,
help
legally
tional
in avoidance of a
factual
See,
Williams,
e.g.,
conclusion.29
The U.S.
that an accused has fair notice
requirement
ensuring
aids
violating a criminal statute.
Screws v.
that he or she is
States,
Supreme
the U.S.
Court stated:
United
indeed,
Court,
recognized
requirement
of a
has
may
to do a
act
avoid those
specific
prohibited
intent
consequences
may
to the accused which
otherwise render
vague or
statute invalid. The constitutional vice
indefinite
injustice
is
to the accused of
such a statute
the essential
offense,
placing him on trial for an
the nature which the
it
no
gives
not define and hence of which
statute does
warning.
punishment imposed
only
where the
for an
But
knowingly
purpose
doing
done with the
that which the
act
from
prohibits,
the accused cannot be said
suffer
warning
knowledge
lack of
that the act which he does
violation
law.
1035-36,
325 U.S. at omitted). (citations Supreme recently, More the U.S. Court requirement of a in a presence determined that the scienter the concern that the statute was uncon- statute “ameliorated” “people ordinary it stitutionally vague because ensured intelligence opportunity a reasonable understand [have] *29 Colorado, v. prohibits.” conduct ... Hill [the statute] what 634 703, 732,
530 U.S.
Reading
person
a reasonable
standard into
123
helps
statute,
to narrow
the construction of
keep
further
ing
unconstitutionally
mind that a statute “does not become
vague merely
may
it
perfectly
because
not be
clear at the
Williams,
11,
margins.”
635 torment[ing], alarm[ing], annoy[ing], [seriously] [seriously] terrorizes, [seriously] or it is direct- person’ against the whom Id. (alterations (quot- original) in original) (emphasis in ed.” 649.9(e)). ing § Code Cal.Penal Sanderson, su v. Oregon
Moreover,
discussed
unlike
pra,
it
Oregon
in
court
would
which the
determined
legislative
person
in
standard
the
read
a reasonable
because
offense,
a catchall
history indicated an intention
create
supports
contrary
§ 123
tact.31 As
legislative history of
Report,
supra
Summary
Committee
demonstrated
of
help
of
“to
law enforce
purpose
the harassment
statute is
ongoing
agencies
attempts
to defuse
ment
their
feuds
situations,”
extreme
longstanding disputes,”
help
“avoid
without
provide
and to
relief for victims of harassment who
legal
this
without a
of
redress.
statute would be left
means
381,
Summary
Rep.
supra
Comm.
on H.B.
1-2;
note
of
cf.
Oregon
difficulty applying
31. The
court also had
a reasonable
purpose
standard because the
of the statute could not be determined.
Sanderson,
1025,
(1978).
Oregon
Or.App.
33
575 P.2d
1027
We
previously
constitutionality
§
have not
but have
addressed
present
application; similarly,
judge in
discussed its
as the trial
discussed,
Special Appeals, though
case
the Court of
also not address-
ing previously
constitutionality
§
those
under
123 or
subsections
case,
scrutiny
present
application
in the
has discussed its
of the statute
(c)(2),
regard
warning requirement
with
to the
in subsection
the defini-
State,
(c).
tion of
In
"course
conduct”
subsection
Streater v.
determined,
Special Appeals
Court of
in a case in which the defendant
harassment,
protective
was convicted of
existence
order
(c)(2)
light
requirement
§
was relevant in
of the
in subsection
warning
request
that there be a "reasonable
to desist.” Streater v.
State,
267, 272-73,
Md.App.
543-44
rev’d on
A.2d
State,
(1999).
grounds,
other
352 Md.
A.2d 111
Streater
acknowledged
352 Md.
A.2d
we
that certain factual
protective
provided
determinations in a
conduct, intent,
order
evidence of course of
engagefment]
in a course of conduct
"maliciousf]
seriously annoys
person.”
that alarms or
another
atMd.
State,
Special Appeals
other
leaflets
language is
community
programs.
action
This
openings
that have
jurisdictions
tenor as used
other
the same
phrase,
statutes that contain the
stalking and harassment
of,
constitutionally protected
variation
“does not include
some
a
jurisdictions have not
that such
activity.” Those
determined
See,
Flori
unconstitutionally vague.
e.g.,
Bouters v.
phrase
(Fla.1995)
da,
(holding
stalking
Florida’s
stat
So.2d
ute,
language “[c]onstitutionally protected
which contained the
“course of conduct” definition
activity is not included”
activity
protected
“picketing
and constitutional
includes
protests,”
impermissibly vague),
was not
cert.
organized
other
denied,
171;
L.Ed.2d
John
son,
(determining
N.E.2d at 668-69
that an Indiana
constitutionally
stalking
specifically excluding
protect
dis
activity
picketing pursuant
such as “lawful
to labor
ed
putes”
unconstitutionally vague);
from its ambit was not
Saunders,
statute,
stalking
a
(finding
None of the words
unconstitutionally vague. They
meaning
a common
have
average
understanding
person
known to the
of common or
Moreover,
a
intelligence.
employing
reasonable
stan-
specific
requirement
dard and the inherent
intent
alleviates
potential
Finally, potential
further
doubt.
offender does not
wary
unanticipated
liability
criminal
because of
have
request
condition that there be a reasonable
to desist.
case, Javin,
assistant warden and
present
parents,
her
told
psychologist
prison,
at the
and Petitioner’s former counsel
Despite
not to
these warn-
Petitioner
send letters
Javin.
ings,
proceeded
large
volume of additional
Petitioner
send
relatively
period
short
letters
Javin within
time.
present
congruent
facts of
case
also
with the intended
are
*33
purpose
Special Appeals
of the statute. As the Court
stated,
credulity that
...
suggest
strains
“[i]t
[Petitioner]
would
reasonably understand that
these letters
could not
of his
annoy woman who
the victim
seriously
[was]
alarm or
stalking.” Galloway,
prior
kidnapping
crimes of
Md.App. at
C.
that
123 is
arguing
also is incorrect
Petitioner
unconstitutionally
Supreme Court ex
overbroad. The U.S.
may
plained
precise
that
clear and
enactment
neverthe
“[a]
constitutionally
prohibits
if in its reach it
less be ‘overbroad’
at
protected
Grayned,
conduct.”
S.Ct.
(footnote omitted).
purpose
The crucial
is whether the [statute]
may
punished
within
under the
prohibitions
its
what
be
is that an
First
Fourteenth amendments. The concern
fact,
chilling
may, by
very
overbroad statute
have a
is, if
expression.
effect on free
That
a statute is
overbroad,
struck
it
appear
down
must
the statute’s
very
expression.
will inhibit free
The doctrine is
existence
‘strong
applied sparingly.
It
medicine’
should be
limiting
should not be invoked when a
construction can be
placed on the statute. Because the over breadth doctrine
statute,
challenge
facial
a court
validity
involves
to the
of a
danger
should not
to it
resort
unless there
a realistic
significantly
will
compromise recognized
the statute itself
first
protection
parties
amendment
not before the court.
(alterations
Eanes,
doctrine
wide
cases
those
*34
only
that
word
that
regulate
spoken
statutes
to those
Broadrick,
613-16,
at
“expressive”
involve
conduct.
413 U.S.
2916-18,
a
applied
[T]he adjudication exception facial is an to our over breadth function, practice traditional and that its a rules limited outset, unprotected one at the attenuates as the otherwise that it to sanction from behavior forbids the State moves speech’ and that if ‘pure toward conduct conduct—even within valid crimi- expressive scope otherwise —falls legitimate maintaining nal laws that reflect state interests in harmful, comprehensive constitutionally controls un- over laws, protected Although broadly conduct. such if too worded, may protected speech deter to some unknown extent, point there comes a where that effect—at best confidence, prediction cannot, justify invalidating — prohibiting enforcing statute on its face and so from State within its against admittedly the statute conduct is power proscribe.
Broadrick,
615-16,
Explained way: in another in-
[P]articularly
merely speech
where conduct and not
is
volved,
that the
of a
must
we believe
overbreadth
real,
well,
only
judged
but substantial as
in relation
plainly legitimate sweep.
to the statute’s
Broadrick,
at
at
U.S.
93 S.Ct.
As with the
respec-
regarding
divided in their views
their
ion states have
unconstitutionally
dealing with harassment as
tive statutes
*35
reasoning of those
or not. We conclude that the
overbroad
similar harassment
that have determined
their
states
over breadth
transgress
do not
the confines
the
statutes
taking into account the man-
persuasive,
are more
doctrine
following
§ 123. In
language
doctrine and the
dates of the
states,
§ 123 sanctions con-
further determine that
these
we
prohibit
any
and that
power
that is within the state’s
to
duct
to
arguably may
subject
is not
overbreadth that the statute
§ 123
to that conduct which
is meant
substantial
relation
(or protect).
legitimately
prohibit
harassment statutes
Many states have concluded
their
statutory requirements
because of their
are not overbroad
case,
conduct,
present
requiring
an
purposeful
such as
alarm,
harass,
person.”
annoy
“intent
or
the other
(1998)
617,
Conn.App.
v.
49
A.2d at
alteration
Conn.
(a)(2)).
Relying upon
53a-183
Connecticut
Gen.Stat.
Conn.Supp.
The over breadth scope messages may which the statute ban be- ed employed cause it is the manner and means to communicate subject prohibition which is the of the rather than them is on their content. The statute not flawed because recital telephone prayer of the most sublime with the intention harassing would fall within its ban and effect the listener readily epithet. prohibition as most scurrilous The against purposeful readily harassment means of a device susceptible trespasser upon as a constant our abuse privacy. (internal omitted) at 243-44
Snyder, quotation 717 A.2d marks 1270). (quoting Conn.Supp. Anonymous, 389 A.2d acknowledged thusly court Snyder respect further mailings, present such as in the case: conduct, proscribes
Since the statute
rather than content of
mailings,
chill people
the risk
the statute will
from
speech
compared
exercise of free
is minor
with the
*36
unfortunately prevalent
postal system
misuse of the
Thus,
privacy.
harass
others
invade their
because this
prohibits
by
intentional
of
harassment
means
regulate
mail and
not
does
seek
the content of such
mailings, we hold that first amendment freedoms are not
unconstitutionally
involved and the statute is not
overbroad.
Snyder,
Similarly, People Mich.App. Appeals Michigan N.W.2d 780 the Court of deter- Michigan’s telephone prohibit- mined that harassment statute and, such, than pure speech ed conduct rather was not unconstitutionally Michigan overbroad. The court stated: telephone by angry parent
Do calls an to a student with failing grades, by by disgrun- a dissatisfied consumer or constituent, if accompanied by language thought tled to call, by recipient subject of the the caller to ‘offensive’ case, criminal sanctions under the statute? In each defen- claims, right dant the caller’s exercise of his constitutional speech might ‘annoy,’ ‘frighten’ free or be considered ‘ob- Thus, or ‘harassing’ scene’ the listener. under defen- statute, interpretation per- dant’s if is listener’s ception or characterization of of the call which the nature disagree. clearly provides would control. We The statute caller; that the focus is on the it is the malicious intent with which transmission is made that establishes the criminality the conduct.
Taravella,
added).
(emphasis
On the same
in Idaho v.
127 Idaho
(Ct.App.1995),
P.2d 357
Appeals
the Court of
Idaho deter-
overly
mined that a
not
harassment statute is
broad because
prohibited “only telephone
the statute
contacts made with a
threaten,
specific
‘annoy, terrify,
intent to
intim-
exclusive
”
idate,
offend,’
protected speech
harass or
which is not
but
conduct,
proscribe telephone
and the statute did not
calls
legitimate
Richards,
made “with
intent to communicate.”
added).
court,
896 P.2d at
(emphasis
quoting
from
The
Circuit,
of Appeals
U.S. Court
Fourth
stated:
government
strong
has a
legitimate
interest
preventing the harassment of
‘Prohibiting
individuals....
prohibiting speech,
harassment
because harassment is
protected
not a
speech.
communication,
is not
Harassment
although it may
speech.
take the form of
The statute
Supreme
Pennsylvania
35. The
Court of
also concluded that slate’s
unconstitutionally
harassment statute was not
broad because
government
legitimate
preventing
[t]he
has a
interest
the harass-
ment of individuals. The statute is not directed at the content of
speech
suppression
expression.
and is unrelated to the
of free
Rather
the statute focuses on the manner and means of communication and
proscribes
By
communications made
an
intent to harass.
re-
harass,
quiring
punish
an intent to
the statute does not
constitutional-
*37
Broadrick,
ly-protected
principles espoused
conduct and under the
in
facially
legitimate
the statute is not
overbroad in relation to its
purpose.
Hendrickson,
added).
(emphasis
prohibits are the intent to communicate Phone calls made with rass. case, pro- not in this thus is prohibited. Harassment using a tele- merely 36 accomplished it is because tected phone.’ Cir.1988) (4th 241, 242 v. 846 F.2d (quoting Bailey,
Id. Thorne Thorne, 175 333 S.E.2d W.Va. (quoting Virginia West denied, 106 S.Ct. cert U.S. Gintick, (1985))); also Champagne L.Ed.2d 363 see (D.Conn.1994) (“[T]he has held Supreme Court F.Supp. 1527 activities types potentially expressive that ‘violence or other from communicative special harms distinct their produce ” (al protection.’ ... entitled to no constitutional impact are Indepen v. Des Moines original) (quoting Tinker teration Dist., Community dent Sch. U.S. (1969); Jaycees, Roberts v. States
L.Ed.2d 731
United
(1984))).
In the
A criminal
should
Amendment,
however,
is not an
The First
Amendment.
conduct,
any
protects
speech
shield which
impenetrable
whatsoever,
disregard
Despite
to its harm and effect.
to harm others
rights,
First Amendment
we are
free
our
strays further
speech.
speech
of free
“As
guise
under
the
dialogue
exchange
and
of
persuasion,
from the values of
free
states,
"Stalking,"
pertinent
Annotated
38. Kansas Statute
part:
intentional,
(a)
repeated following
Stalking
malicious and
is an
person
making
with the
another
and
a credible threat
harassment of
person’s
place
person in reasonable fear for such
intent to
such
safety.
(1)
(d)
a
purposes
For
this section:
"Course of conduct” means
of
time,
pattern
composed
period
of a series of acts over a
of
of conduct
short, evidencing
continuity
purpose
a
and which would
however
distress,
person
a
to suffer substantial emotional
cause
reasonable
actually
person.
cause substantial emotional distress to the
and must
meaning
Constitutionally protected activity is not
with the
included
"course of conduct.”
(2)
knowing
intentional course of con-
“Harassment” means
alarms, annoys,
person
seriously
specific
at a
that
duct directed
legitimate
person,
and that serves on
torments or terrorizes
purpose.
threat,
(3)
including
threat” means a verbal or written
"Credible
means,
implied by a
via electronic
or a threat
which is communicated
pattern
or a
of verbal or written statements
of conduct
combination
ability
carry
apparent
and the
to
and conduct made with the intent
target
so as to cause the
who is the
of the threat
out
threat
person’s safety.
reasonably
present
fear for such
The
incarcera-
person making
prosecution
a bar to
tion of a
threat shall not be
under this section.
ideas,
perform illegal
threats to
and moves toward willful
acts,
regulate expression.”
greater
has
latitude
State
Borrelli,
Cal.App.4th
Cal.Rptr.2d
People
(2000)
948 F.2d
(referring
Shirley,
Shackelford
(5 Cir.1991)).
...
“Application of the
doctrine
overbreadth
is, manifestly, strong
employed by
medicine.
It has been
Broadrick,
sparingly
only
the Court
as a last resort.”
laws,
stalking
Concerning
Whitesell, at 900-01. 13 P.3d favorably repeated following court then
The Kansas quote: words,
“Many
solely
spoken
can consist
such as
crimes
soliciting
making
... or
a terrorist
bribe
threat....
threats,
may
consisting
pure
state
penalize
even those
speech, provided
singles
punish-
out for
the relevant statute
falling
scope
ment
outside of the
of the First
threats
context,
protection....
goal
Amendment
this
protect expression
engages
First
is to
Amendment
public dialogue,
some fashion
is ‘communication in
*40
participants
persuaded;
which
to or
communi-
seek
are
beliefs,
maintaining
cation
changing
which is about
or
or
taking
refusing
to
action on
basis of
take
one’s
valid,
A statute that
beliefs....
is otherwise
is not
aimed at protected expression, does not conflict with the
simply
First Amendment
because the statute can be violat-
spoken
ed
the use
words.”
(alterations
Whitesell,
III.
of the Evidence
presented
Petitioner contends that the evidence
agreed
present
statement of facts in the
case was insuffi-
quite
39. Petitioner
relies on cases
which the statutes are worded
differently
limiting language.
than
123 and do not contain
See
Moore,
Wash.App.
(holding
Washington’s
Our rather, weight of but whether accord with the the evidence produced evidence at trial “that either there was sufficient circumstantially, supported a rational directly, showed fairly a trier of fact of facts which could convince inference beyond a guilt charged of the offenses of the defendant’s doubt.” reasonable
Sowell,
(quoting
Petitioner maintains that the letters were
of “a
peaceable activity
express political
pro
intended to
views or
they
to
that
a “legal pur
vide information
others” and
had
pose”
apply
According
so that
123 did not
to his conduct.
to
Petitioner,
basically
provide
were
intended to
the “letters
Javin,
religious
express
information to
to
concern for her
religious
and to
for
future
convince Javin
Petitioner’s love
added).
letters,
initial
(Emphasis
her.”
After the
few
howev
er, Galloway
multiple
was warned
times that Javin did not
wish to
communications from him. Those instructions
receive
notwithstanding,
by sending
large
continued his
he
course
a
this,
of additional letters. From
a
fact-
number
reasonable
was,
reasonably
Galloway’s
in
finder
could conclude that
intent
Javin,
fact,
merely
engage
to harass
rather
than
to
in a
peaceable activity,
legal purpose.
with a
We have
stated
is, in
“the determination of an accused’s intention
the first
instance,
judge,
sitting
for the trial
when
a
and
jury,
without
appeal
this determination will not be disturbed on
unless
Raines,
582, 590,
clearly
326 Md.
erroneous.” State
(1992)
State,
(citing Taylor
A.2d
238 Md.
denied,
(1965)),
209 A.2d
cert.
(1992).
Furthermore,
subjective
cooperation
without
cannot
directly
objectively proven,
presence
and
its
must be shown
permit
proper
established facts which
of its
inference
Raines,
(internal
Md. at
existence.”
A.2d at 268
omitted)
quotation
(quoting
marks
State v.
319 Md.
Earp,
(1990)).
1227, 1233
571 A.2d
supports
explicit
The evidence
the record
the trial court’s
implicit
beyond
and
conclusions that the letters were meant
(1)
doubt,
harass, alarm,
(2)
or annoy
reasonable
Javin and
necessarily
not
were
intended as the dissemination of mere
religious
supra
necessary,
instruction. See
note 3. It was not
contends,
judge
specifically
as Petitioner
the trial
discuss
exceptions of “peaceable activity”
“legal
whether
It
purpose” applied
present
enough
case.
was
that the
judge
trial
found that the harassment elements of the statute
Taking
plethora
had been satisfied.
into account the
of let-
ters,
stalking
kidnapping
convictions of
prior
Petitioner’s
Javin,
stop
send-
requests
the numerous
Petitioner
did,
letters,
find,
ing
judge could
as Javin herself
the trial
frequent
being
to Petitioner
references
the letters
and the enforcer of the law and God’s and Jesus’s
“Moses
kill
ambassador”
that Petitioner
her so that
meant
intended
non-corporeal way.
they
together again,
could be
but
may
explicit,
and even
Although the threat
have been
*43
considering
began
that some
the letters
with such state-
threat,”
in this
to
a
a
“[njothing
ments as
letter is meant
reasonably may
considering
threat
all of
be inferred
presented
language
circumstances
and the other
the letters.
stated,
Special Appeals
3. As
supra
See
note
the Court
“[a]
person
intelligence
of common
would have no trouble under-
standing
frequent
that
written communication
a convicted
person
previously kidnapped
of a
whom
felon
the home
he
stalked,
seriously annoy
recipient.”
and
will
or alarm the
Md.App.
Analogously,
Furthermore, sufficient supported evidence the conclusion writing mailing that the act of and the letters was malicious not, and was as argues, merely Petitioner a minimal intrusion letters, by throwing that Javin could have avoided out the unopened, that from came Petitioner or bore his return ad- Javin, receiving dress at MCTC. It is true that after and letters, reading them; a few of stopped reading could have however, the sheer volume of from letters received the known pre-existing source and circumstances that created the background surrounding context from letters that source enough to support finding are and than malice more minimal sending intrusion. The mere and of that receipt letters, coming volume of warnings Galloway, after the even them, had opened supported Javin not a reasonable inference on the and the adverse effects Galloway’s unlawful intent victim. to find was sufficient evidence conclude there
We engagement a malicious sending of the letters was Petitioner’s seriously annoyed Javin that alarmed or in a course of conduct circumstances) (or the same a reasonable of conduct with the intent engaged in this course Petitioner several harass, alarm, annoy Petitioner received Javin. It such conduct. warnings requests desist reasonable acted without from the record that Petitioner also is evident legal purpose. AFFIRMED, COSTS WITH
JUDGMENT ELDRIDGE, dissenting. Judge, proscribed by interprets “course of conduct” majority The Vol., (1957, Art. Repl Supp.), Maryland Code sending of communica- repeated encompassing views, tions, i.e., containing religious expres- mail first class majority apologies past for conduct. feelings, sions of punishment criminal interprets § 123 to authorize also *44 had of the communications of conduct where the sender course them, recipient and the requested stop sending to where been annoyed by or alarmed seriously of the communications was holds, any explanations, majority further without them. The “[wjithout within the legal purpose” a that such conduct is 123(c)(3) encompassed by “pro- not meaning §of and is 123(b). §in viding] exception of information” view, 27, 123, interpreted by § as the Court my Art. in of unconstitutionally vague and violation today, is overbroad Amendment, of the Four the Due Process Clause the First 24, Amendment, 36, Mary of and Articles and 40 teenth majority purports Rights.1 Although of land Declaration 609, 5) petitioner "makes majority (opinion at n. that the 1. The states Maryland or Declaration of arguments under the Constitution no petition writ of Rights.” certiorari, single question presented in the for a The brief, petitioner's was not repeated and verbatim in the United States First Fourteenth Amendments to the limited to the and 610) place “judicial gloss” (opinion § on at and to (id. 619), “employ limiting construction to the statute” Instead, presented question broadly worded as Constitution. was follows: denying motion to dismiss "Did the trial court err Petitioner’s Ann.Code, convicting and in § him of harassment under Md. Art. 121A, changes specifically with minimal as now codified unconstitutionally vague challenge the face of a overbroad on its face and as challenge that the statute is applied to Petitioner and in the face support a conviction?” facts did such Mary- question encompasses vagueness and overbreadth under the Rights land as well as under the First and Fourteenth Declaration majority petitioner’s Amendments. The seems to assert that the over- vagueness arguments reply breadth and in his brief and brief are based solely grounds on federal constitutional and not on state constitutional grounds. Except pages for a few references on two different to "First guarantees,” "expression,” petitioner's Amendment overbreadth and or "liberties” or vagueness arguments general in his briefs are Maryland equally applicable under the Fourteenth Amendment or the Moreover, Rights. by Declaration of Special Appeals, in cases decided the Court of by appellate or a circuit court in the exercise of its jurisdiction, by the issues before this Court determined the certiora- are petition, any cross-petition, any limiting ri expanding order this Court or See, 8-131(b). Maryland e.g., Wynn the issues. Rule State, 307, 319-324, (1998); 351 Md. 718 A.2d 594-597 Profession- Dimensions, al Nurses v. 346 Md. 695 A.2d (1997); 569, Inc., Group, Am. Motorists ARTRA Ins. Co. v. 338 Md. 568- (1995); Maryland Zeigler, 659 A.2d State Police v. 540, 562-563, Md. 625 A.2d and cases there cited. Rights provide Articles and 40 of the Declaration of follows: process. “Article 24. Due ought imprisoned "That no man taken or or disseized of his freehold, outlawed, exiled, or, privileges, any liberties or or or manner, life, destroyed, deprived liberty property, by or of his or but judgment peers, of his or the Law of the land.” Religious “Article 36. freedom. duty every worship "That as it is the man to God in such manner Him, acceptable persons as he equally thinks most all are entitled wherefore, protection religious liberty; person ought fay in their no estate, any law to be molested in his or on account of his religious persuasion, profession, religious practice, or or for his unless, order, religion, good under the color he shall disturb the State, peace safety infringe morality, of the or shall the laws of natural, injure religious rights....” others in their civil or *45 press speech. "Article 40. Freedom of and liberty ought press inviolably preserved; "That the of the to be every ought speak, citizen of the State to be allowed to write and publish subjects, being responsible his sentiments on all for the abuse privilege.” of that efforts, in my opinion, is majority’s result of the vagueness from now suffers more overbreadth Assembly. by crafted the General language than the literal I. unconstitutional overbreadth discussing detail the
Before majority, it interpreted by § 123 as vagueness general principles discuss of the would be useful to some clarify and to what is before the Court. applicable this case
A. constitutionality, § 123’s the ma initial discussion of its presumed that a statute is jority upon principles relies attacking the statute has the burden “party valid and that the 610-611). unconstitutionality.” (Opinion at establishing its resolving generally applicable are principles these While nevertheless, or other challenges, when statute constitutional speech or government action interferes with other freedoms 40 of by First and Articles 36 and protected Amendment or other Maryland Rights, Declaration of the statute subject scrutiny justified and must be government action Although governmental interest. showing of sufficient scrutiny governmental interest type level may vary depending upon the nature the interference activity, is on the protected “the burden speech other Elrod v. government to show the existence of such interest.” 2673, 2684, Burns, L.Ed.2d 96 S.Ct. U.S. (1976), and cases there cited. 436, 446, 604, 609, State, 318 Md. 569 A.2d Even Eanes v. denied, 110 L.Ed.2d cert. today, upon by majority relied an aberrant decision acknowledged: this Court importance speech of free in our constitu-
“The fundamental however, on its requires, tional scheme restrictions subjected searching scrutiny.” exercise be Consortium, F.C.C., See, Denver Area Educ. Telecom. e.g., 135 L.Ed.2d
655 (1996) (“the showing cannot sustain of Government its burden 10(c) [authorizing to operators prevent that cable television programming public on ‘patently the transmission of offensive’ it necessary protect access is to children or that is channels] end”); appropriately that Rubin v. tailored secure Coors Co., 487, 476, 1585, 1592, Brewing 514 115 131 U.S. S.Ct. (1995) (“the 532, L.Ed.2d 541 Government carries the burden showing challenged regulation speech] of that advances [of ”); way’ interest ‘in a direct and Government’s material Union, 454, v. Treasury Employees U.S. National (1995) (the 468, 1003, 1014, 964, 115 S.Ct. 130 L.Ed.2d 980 degrees Court discussed the different of “the Government’s depending statutory burden” on the nature of the restriction F.C.C., upon speech); System, Turner Inc. Broadcasting 622, 661-662, 664, 2445, 2469, 2470, 512 114 U.S. S.Ct. 129 (1994) (content-based 497, L.Ed.2d regulations of speech require “application exacting of the most level First Amend scrutiny” scrutiny ment whereas “the intermediate level of [is] applicable to impose content-neutral restrictions that an inci speech,” dental on although respect burden even with to the government latter restrictions the “must demonstrate real, conjectural, recited harms are not merely and that the regulation will in fact alleviate harms in a those direct and Vincent, material way”); 263, Widmar U.S. 269, 274, (1981) (“In 440, 70 L.Ed.2d 447-448 order justify discriminatory exclusion public from a forum based
on religious content of’ speech, the state “must show that regulation necessary its is compelling serve a state interest end”); and that it is narrowly drawn to achieve Schad v. Borough 61, 71, 2176, Ephraim, Mount U.S. S.Ct. (1981) (“Because 68 L.Ed.2d the ordinance challenged in significantly this case limits communicative ac ..., tivity we must scrutinize both by the interests advanced [governmental entity] to justify protected this limitation on expression interests”); and the means chosen to further those Bellotti, First Nat. Bank Boston v. 435 (1978) (the 55 L.Ed.2d challenged exacting scrutiny statute must “survive the necessitated speech---- state-imposed ‘[T]he restriction freedom may only upon showing subordinating interest prevail State compelling ... and the burden is on the Government which Jakanna v. ”); of such an interest’ to show the existence (1997) Montgomery County, 344 Md. 689 A.2d (“the County prove on proof [the burden of rests directly advances a substantial restricting speech] ordinance *47 than any and is not more extensive government interest interest”). necessary to achieve that burden Consequently, majority placing the errs the entire establishing unconstitutionality upon petitioner the Gallo- of conclusion, Furthermore, way. majority’s reliance on its the “ at 611 n. regulates unprotected (opinion 123 conduct” 9), petitioner, burden on the is somewhat justify placing circular.
B. Although majority purports separately to treat vague- issues of overbreadth under the First Amendment requirements, majority seem process under due does ness acknowledge the interaction between the two constitutional challenged on both principles when statute is overbreadth Supreme explained Court thus vagueness grounds. The 1242, 566, 572-573, 94 Goguen, Smith 415 U.S. S.Ct. (1974) added, (emphasis 39 L.Ed.2d 611-612 omitted): footnotes holdings of District and the agree
“We Court Appeals process vagueness. of on the doctrine of Court due principles require of that doctrine no extensive The settled fair incorporates The doctrine notions of restatement here. Moreover, warning. requires legislatures it to set notice reasonably guidelines for law enforcement officials clear prevent arbitrary of fact in order to and discriminato- triers by unaided scope, enforcement. Where statute’s literal ry interpretation, capable state court reach- narrowing of Amendment, sheltered the First the doc- ing expression than in other degree specificity trine demands a greater of contexts.” Nevada, also, Bar e.g., Gentile v. State U.S.
See of (1991) (“The 2720, 2732, 115 L.Ed.2d S.Ct. speech is based prohibition against vague regulations risk of dis- part impermissible on the need to eliminate the question is not criminatory enforcement.... whether here, discriminatory and we it enforcement occurred assume not, imprecise did is so [enactment] but whether the discriminatory possibility”); enforcement is a real Interstate Circuit, Dallas, Inc. v. City S.Ct. (1968) (where standards, statutory 20 L.Ed.2d challenged unconstitutionally vague,” applied “as to activi- are Amendment, ty “protected by First ... start we with the premise ‘[precision regulation touch- must Button, ”); 415, 432, 433, stone’ NAACP (1963) (“[Standards 328, 337, 338, L.Ed.2d 417-418 permissible statutory vagueness strict in are the area free * * * expression. Because First need Amendment freedoms survive, breathing space government may regulate in the *48 only specificity”). with narrow area Moreover, majority correctly states that when a “chal lenged upon statute ... encroaches fundamental constitutional rights, particularly First guarantees Amendment of free speech and assembly, then the statute should be scrutinized 616), on vagueness (opinion its face” at and that “[b]ecause potential ‘chilling of vagueness effect’ that can have on “ liberties,” permitted First Amendment a defendant ‘to challenge validity though of a even the statute ” (Id. applied to the defendant is constitutional.’ at State, 602, 625, 22, quoting Ayers v. 335 Md. 645 33 A.2d (1994), denied, 942, 1130, cert. 513 U.S. 115 S.Ct. 130 L.Ed.2d (1995)). also, e.g., Angeles 886 See Los Police v. Dept. United Pub., 32, 38, 483, 528 Rep. U.S. 120 S.Ct. 145 L.Ed.2d (1999) (“‘At 459 regulate proscribe least when statutes ... speech society the transcendent value to all of constitu tionally protected expression justify “allowing is deemed to overly attacks on requirement broad statutes with no that the 658 that his own conduct making the attack demonstrate regulated by requisite a statute drawn with the could not be ’ ” Wilson, v. 405 quoting Gooding specificity,”
narrow
(1972),
1103, 1105,
518, 520-521,
31 L.Ed.2d
413
92 S.Ct.
479, 486, 85
Pfister,
Dombrowski v.
380 U.S.
S.Ct.
quoting
1116, 1121,
(1965));
Borough
14 L.Ed.2d
Schad v.
of
452 U.S. at
Ephraim, supra,
Mount
(“Because
appellants’
claims are rooted
L.Ed.2d at
Amendment,
impact
on
of
they
rely
are entitled to
First
expressive activities of others as well as
the ordinance on the
ones,
laws,
vague
like
deter
their own.
‘Because overbroad
activities],
firmly
appellant’s
our cases
establish
privileged
challenge.’
standing
Grayned
City
an overbreadth
raise
104, 114,
2294, 2302, 33 L.Ed.2d
408 U.S.
92 S.Ct.
Rockford,
(1972)”);
Md. v.
H. Munson
Secretary
Joseph
State
Co.,
947, 966-967,
L.Ed.2d
H.
affirming Joseph
Munson Co.
Sec. of
(1982).
State,
294 Md.
It is what George Galloway and Kimber- present in the case. Court ly formerly together, had lived and later Javin terminat- Javin Thereafter, Galloway convict- relationship. was ed the stalking kidnapping Javin and was sentenced ed years years suspended. with all but seven He prison for and was probation suspended portion on for the was directed, probation, as a condition of to have no contact with Nevertheless, is not a prosecution the case at bar Javin. conduct and is not a Galloway’s on 1994 and 1995 based Al- proceeding upon alleged probation. based an violation majority judge’s indicates that the trial “conclu- though the ... present properly sions” in case took “into account *49 prior pre-existing convictions” and “the circum- Petitioner’s 651, 652), (opinion majority suggest the does not stances” 27, 123, § that Art. is limited to circumstances where there Furthermore, victim. prior was criminal involvement with the a limita- nothing statutory language support in the would such previously Persons who tion. have never been convicted addition, any equally subject § criminal 123. In offense are to majority appears rely only to on convictions the the 1995 Galloway evidence that 1997 and 1998 had the “intent to harass, alarm, may or annoy” Javin. While this inference be debatable, vagueness it no clearly bearing upon has or statutory language overbreadth or whether other statu- tory requirements were met.2 upon
This case is also not concerned with the restrictions
rights
may
First Amendment or other constitutional
which
legitimately
upon
imposed
be
inmates of a correctional institu-
tion
security
exigencies
because
other “needs and
of the
environment,”
McDonnell,
539,
institutional
Wolff
2974,
(1974).
Thus,
L.Ed.2d
regulations placing
types
upon
certain
mail
restrictions
may
which an inmate
from
send
the institution
someone on
outside, or upon
may
mail which an
from
inmate
receive
outside,
See,
on
may
someone
be valid.
Bell v.
e.g.,
520, 548-555,
1861, 1879-1882,
Wolfish,
Allen,
(1979);
L.Ed.2d
474-479
Secretary
Md.
137-141,
(1979);
State,
406 A.2d
106-109
Thomas v.
(1979).
§
Md.
404 A.2d
Again,
260-263
institution,
limited to
of an
majority
inmates
suggest
does not
applies
persons
otherwise. Section 123
not,
been,
who are
and have never
in a correctional institution
place
only
Galloway’s
of detention. The
in-
relevance
status may
statutory requirement
mate
be to the
123(c)(3)
“[wjithout
proscribed
that the
conduct
legal
purpose.” Maryland
institutions, pursuant
reg-
correctional
ulations, can
persons
censor mail sent
inmates
outside of
the institutions. See COMAR 12.02.20.02 et
also
seq. See
statute,
may
clearly
narrowly
It
well be that a
drafted
tailored
prohibiting
repeated sending
of unwanted communications to a
person,
previously
where the sender had
been convicted of a violent
against
recipient
subject
crime
or had been the
of a domestic
protective
involving
violence
recipient,
order
or had threatened the
life,
above, however,
pointed
victim’s
would be constitutional. As
out
§ 123 is not such a statute.
*50
State,
Thomas v. permitted by the Galloway to Javin were by letters sent institutional authorities. Post
Furthermore, Rowan v. United States unlike Office 25 L.Ed.2d 90 S.Ct. Department, U.S. bar does not by majority, the case at relied on authorizing a narrowly written statute clearly and involve a from Department) Post to refrain Office (e.g., carrier have notified the recipients to who delivering advertisements them, and which is do not wish to receive they carrier that Instead, a criminal remedy. this is by a civil enforceable statute, repeatedly has vague of one who prosecution, under a views, mail, religious expressing feelings, sent first class mail.3 not wish to receive such apologies, to a who did principle to the Finally, majority while the refers “ appeal on of fact ‘will not be disturbed judge’s findings trial ” 650), (opinion at it should be em- clearly erroneous’ unless dispute about the basic or histori- that there was no phasized entirely was tried on a written cal in this case. The case facts attorney read prosecuting of facts which the agreed statement record, agreed additional fact plus into the one counsel, and 13 of the letters attorney and defense prosecuting “sample[s].” trial court as submitted to the which were addition, majority in the contrary In to the statement judge finding trial no that the letters “were opinion, the made religious of mere instruc- as the dissemination intended 650). verdict, trial rendering his (Opinion tion.” fact, namely that only finding of judge expressly made one annoy or clearly was “the intent of the defendant’s letters concerning exception finding No was made harass.”4 Furthermore, applicable in the doctrine would not be the overbreadth apply doctrine does not Rowan situation because "the overbreadth Flipside, speech.” Village Estates v. commercial of Hoffman (1982). L.Ed.2d relating transcript to the trial court's rendition of the 4. The entire verdict is as follows: 123(b) provide ... “peaceable activity §in intended to rendered, At time verdict was information to others.” finding relating no was made to the element of the offense “[wjithout 123(c)(3) legal purpose.” the conduct be finding No was made that the letters themselves contained And, connection, in this Ms. Javin’s statement to the threats. *51 that for grounds trial court indicated her fears were in than primarily the events 1994 and 1995 rather the letters. She stated: underlying question "THE COURT: I think the here is whether a defendant who is incarcerated can commit the crime of harassment as it who is not incarcerated. relates to someone "The statute that the Court has for consideration is Article provides pertinent part 121A. It a who mali- Section ciously engages seriously course of that either a conduct alarms harm, alarm, annoys person, annoy another with the intent to or to it, warning stop after reasonable to has committed the crime of harassment. “The case are facts of this that the defendant sent over 130 letters letters, period reading taking over a of 11 months. and into relationship people, consideration the between these this Court two clearly annoy satisfied that the intent of the defendant’s letters was to beyond or to harass. I am satisfied to that a reasonable doubt. “Accordingly, I am satisfied that the elements of the statute have they been satisfied. I am satisfied further have been met or proven beyond a reasonable doubt and the Court a verdict of enters guilty to the crime of harassment. though Judge may “Even Thieme have made comment some about stop writing, stop he couldn’t the defendant from I can’t him from writing. you stop writing. I will tell that. I cannot him from Even off, your you probably way if I cut hands would find some to write. telling you you "But I what am is that when do this in the manner it, you in which did where there is clear inference to be drawn from it harass, annoy you keep doing and intent to or to is harassment. If it it, you going probably keep getting charged keep getting are to up serving days will convicted. You end a life sentence 90 at a time. Anything else?’’ 609-610) majority quotes (opinion paragraph from the trial evidence,
judge stating including "conclufsions]” certain based on the that, therefore, “personal” statement the letters were “the added). they legal purpose.” (Emphasis Court can find that served no paragraph judge’s This opinion was from the trial written of October denying the defendant’s motion to dismiss motion for judgment acquittal. judge pro- The trial rendered his verdict at a ceeding hearing arguments "guilt on November after on 4th, charge.” innocence as to the harassment Thereafter on November sentencing hearing. the trial court went on to conduct a that dirt road he Going in the car down JAVIN: “MS. my body with bury to kill me and going that he was told me road. All that was on the side of the piece machinery to kill me. during that time he threatened to believe that when he I real fear and reason “So have had said he out, through follow with what he gets he will it down in enough is clever not to write going to do. He was through plan with his so that he can follow his letters sure.”
* * * prison try get at the to them spoken people “I have if writing stopped But even he stop him from letters. out letters, gets am for when he I still fearful writing the going I know how I am just to do. don’t going what he is protected.” this, Furthermore, in a assessing the facts case such “in admonition that cases Supreme must heed the Court’s we *52 an ... an court has appellate issues raising First Amendment of the whole independent to ‘make an examination obligation judgment to make sure that ‘the does order record’ expres intrusion on the field of free constitute a forbidden ” States, Inc., Union United Corp. sion.’ Bose Consumers 1958, 502, 485, 499, 1949, L.Ed.2d 515 104 80 466 U.S. S.Ct. Sullivan, 254, Times Co. v. quoting New York 376 U.S. (1964). See 710, 728-729, 11 L.Ed.2d 84 S.Ct. Nevada, also, supra, Bar at e.g., Gentile State 501 U.S. (“Full 2726, 115 at L.Ed.2d at 900 deference 111 S.Ct. of our re findings justify does not abdication these factual can petitioner’s whether statements sponsibility to determine standards”); Amendment consistent First punished be 1312, 1313, 564, 566, Maryland, Bachellar v. 90 S.Ct. U.S. (1970) (“Since argue that their petitioners 25 L.Ed.2d constitutionally protected, we have examined conduct was constitutionally pro ‘a claim of for ourselves. When record * * * involved, an duty it “remains our to make right tected ’ whole record.” Cox v. Louisi independent examination (I), ana 545 n. 13 L.Ed.2d (1965)”).5
D. 123(b) majority upon The relies the recitation in that the apply any peaceable activity statute “does not intended to express political provide views or information to others.” The “ majority exception, ‘expressly states that this which excludes ”6 reach,’ constitutionally protected speech from its distin- guishes § which 123 from other harassment statutes have 644). (Opinion been held unconstitutional. out, however, pointed
As this has in a Court recitation impair statute that does not so as to consti apply the statute rights tutional underlying does not affect the resolution of the issues; constitutional it simply equates the constitutional is statutory interpretation sues with For example, issues. Co., 38, 44, Washington Nat’l Arena v. Pr. 287 Md. Geo’s denied, A.2d cert. (1980), involving constitutionality
L.Ed.2d 40 of a retroac tive which statute contained a similar disclaimer that apply statute did not so as to impair rights, constitutional this Court stated:
“The issue this case could be viewed either one statutory interpretation or constitutionality. as a matter of It practical makes no way difference whichever it is viewed. Legislature, in Ch. 129 of Acts of expressly stated its intention that statute should not apply ‘when- constitutionally protected rights ever would impaired.’ Consequently, viewpoint, from a technical if the retroactive application of the 1976 tax the recordation of written instruments at September various times between 1968 and impair taxpayers’ 1976 would rights, constitutional *53 invalidated, Supreme 5. The Bachellar Court’s decision on First Amend- grounds, § ment a criminal conviction under a former 123 of Art. 27 of Maryland Code. Shack, 529, 535, 660, Quoting People from v. 86 N.Y.2d 634 N.Y.S.2d 706, (1995). 658 N.E.2d 710 664 intent,
then, statute does legislative as a matter of However, of application in to determine the apply. order statutory ground, it is obvi- interpretation 129 on this Ch. question.” ously necessary to the constitutional resolve F.C.C., supra, Inc. v. Broadcasting System, See also Turner 2459, L.Ed.2d at 518 114 at 129 512 at S.Ct. U.S. (“Nor purpose be assertion of a content-neutral will the mere content-neutral). is not enough to save a law which” E. 27, 123(c), requires § Art. “[pjrohibited conduct” under
The
alia,
violation,
course of
for a
inter
the defendant’s
harass, alarm,
annoy
the other
conduct be
intent
“[w]ith
”
123(c)(1).
that,
majority
§
states
instead
person....
harass, alarm,
annoy
person,”
“the other
an intent to
language
standard should
read into the
“reasonable
(c)(1)
123,
§
judicial gloss,
and with that
123
of subsection
610-611). Thus,
scrutiny.”
at
(Opinion
constitutional
survives
object of
intent set forth
person,”
in
of “the other
lieu
(c)(1)
person.”
“a reasonable
in subsection
becomes
however,
Court,
generally
to re-write or
This
has
declined
to save the
statutory language
words into
order
insert
year,
this
Montrose
constitutionality of statutes.
Just
Walsh,
565, 594-596, 770 A.2d
363 Md.
Christian School
(2001),
111,
“purely”
to construe the word
128-129
we refused
uphold
“primarily”
in a
or “some”
order
statute
36 of the
under the First Amendment
Article
statute
Instead,
Maryland
Rights.
Declaration of
we held the
unconstitutional,
saving
that a
pointing out
substitution
“
guise
under the
language
‘would be to re-draft the statute
”
Walsh,
construction,’
supra,
Montrose
Christian School
State,
at
Davis v.
quoting
Furthermore, narrowing the Schochet interpre case employed tation of the statute was to reverse the defendant’s conviction; thus, criminal no concerning issue unfair retroac tivity case, however, was present involved. the defen allegedly dant committed the offense and was prior convicted See, to this placing “judicial gloss” Court’s on the statute. States, 188, 191-192, Marks v. e.g., United 990, 992-993, (1977) (While 51 L.Ed.2d Ex Post “[t]he apply own to the ... not of its force
Facto Clause
does
[,]
principle
...
on which
government
Branch of
Judicial
concept
...
to our
is based
is fundamental
the Clause
* *
*
such,
right
protected
liberty.
As
constitutional
...”); Bouie
action
the Due Process Clause
against judicial
*55
Columbia,
II. language to the of Art. specifically I shall now turn majority’s interpretation language. of that and the A. as follows:
Section reads “ § 123. Harassment.
“(a) this section ‘course of Course conduct defined.—In conduct, persistent pattern composed conduct’ means time, period that evidences a a series of acts over continuity purpose.
(b) apply any section does not Applicability. —This or activity express political intended to views peaceable information to others. provide (c) person may not follow another Prohibited conduct.—A public place maliciously engage or in a person or about seriously annoys course of conduct that alarms or another person:
(1) harass, alarm, annoy With intent or the other person;
(2) warning request by After reasonable or on desist person; behalf of the other
(3) legal Without a purpose.
(d) Penalty. person who this guilty violates section is —A and, conviction, of a upon subject misdemeanor to a fine exceeding imprisonment for not more than 90 $500 days or both.” proscribed conduct statute is set forth subsec- (c),
tion prove and the State must four distinct elements to bring (c). prohibition the conduct within the of subsection
First, prove the State must either the defendant fol- or, lowed public place another or about a alternative- ly, that maliciously engaged the defendant in “conduct that *56 seriously alarms or annoys” person. the other The alternative “engaged in conduct” allegedly element was involved in the present case.
Second, (c)(1), under subsection prove the State must that the defendant acted with one of requisite the alternative intents, namely to harass or to annoy alarm or to the other person. Interestingly, respect “annoy,” to under the (c) language initial of subsection the conduct must in fact “seriously” annoy person, the other the accompanying whereas (c)(1) intent under subsection not require does an- “serious” noyance. Also, prohibited the course of conduct under the (c) part initial of subsection is to limited that which alarms or seriously annoys, but accompanying the intent under subsec- (c)(1) “alarm, tion adds “harass” to annoy.” or Third, (c)(2), under subsection it must be shown that the had, defendant prior conduct, charged given the been warning request reasonable or may desist. This be the only element of the offense which is forth with set reasonable clarity and is not majority. muddled the (c)(3), prove must
Fourth, prosecution the under subsection legal purpose.” acted “[without that the defendant the various elements establishes In a case where the State (c), the defendant never- forth in subsection offense set the conduct fell § 123 if his convicted under cannot be theless (b). in subsection exceptions delineated within either (b) peace- of the statute coverage from the excepts Subsection express political “to either activity which intended able information to others.” “provide or to views” subsection, (a) is the definitional of the statute Subsection of the only one partial contains a definition although it The statute, namely “course of conduct.” phrases “harass, alarm, annoy.” It contains no definitions statute legal pur- “[w]ithout no of the element contains definitions information exception “providing] or of the pose” others.” sending § 123 consists of prohibited by the conduct
Where
communications,
prohibition
majority indicates
”
“
employed to’
send the
and means
to ‘the manner
relates
”
“
“
and that
‘the
‘rather than their content’
communications
of the
conduct,
than the content
rather
proscribes
statute
”
case).
from a
quoting
at
Connecticut
mailings’
(opinion
“
again
‘[t]he
indicates
majority shortly thereafter
The
” (opinion at
speech’
content of
is not directed
case).
majority
Pennsylvania
quoting
n.
from a
states
but
note that “content must
examined”
goes on to
harass, alarm,
annoy,
an
that where there is
intent
(opinion at
protected speech”
longer
“no
falls under
content
36).
majority
reiterates
opinion,
n.
Later
sending
receipt
because
mere
“[t]he
content is irrelevant
*57
letters,
to
coming
warnings
after the
Gallo-
of that volume of
them, supported a reasonable
opened
even had Javin not
way,
on
and adverse effects
Galloway’s
of
unlawful intent
inference
651-652).
position
majority’s
at
The
(opinion
victim.”
the
intent,
that,
the
to
where the State establishes
seems
(c)(1)
(c)(2),
and
effect,
of subsections
warning
elements
majority’s
utterly
The
speech
of the
is
irrelevant.
the content
require-
in
puzzling
light
of
of the distinct
view the statute
(c)(3)
prove
in
that the
that the conduct
ment
subsection
State
in
legal purpose”
exceptions
and the
subsection
is “[w]ithout
(b)
political
“provid[ing]
of
views” and
“express[ion]
for the
How does a court conclude that the
information
others.”
sending
legal purpose,
is without a
is not the
letters
views,
expression
political
providing
or is not the
of infor-
mation,
looking at
without
the content
the letters? Some-
majority
upon
what inconsistently,
opinion
the
later relies
the
religious
supporting
content
letters as
a find-
of the
evidence
ing
regard
could”
judge
which “the trial
make with
Gallo-
intent,
added).
way’s
(opinion
emphasis
at
prohibited
speech
sending
the
conduct involves
or the
When
communications,
§
it seems clear that
123 is concerned with
speech
the content of the
or communications. This is shown
(b)
exceptions
“legal purpose”
in subsection
and the
(c)(3).
§
in
Accordingly,
applied
element
subsection
when
communications,
to oral or
speech
requires
written
“application
exacting
of the most
of First
level
Amendment
scrutiny,”
scrutiny,”
rather
than “the intermediate
level
C.,
System,
Turner
Inc. v. F.C.
Broadcasting
supra,
at
at
B. Throughout majority much of opinion, the Court relies legal upon purpose” element in “[without subsection (e)(3) (b) exceptions as “limiting subsection lan- guage” and having “inherent restrictions” “a definite and clear meaning helps setting the boundaries for the enforce- 637). 620-622, 627, 630-631, (opinion ment of 123” at The (c)(3) (b) majority points further to subsections as “re- language helps any strictive [which] abate overbreadth” 644). (opinion provisions also on Court relies these distinguishing Maryland statute from statutes in other *58 on over- held unconstitutional
jurisdictions which have been grounds (e.g., opinion 648- vagueness breadth and/or 649). (c)(3) and upon much reliance subsections placing
After so restrictions,” however, (b) majority goes on as “inherent apply and these opinion of its to construe part the later At largely nugatory. them way in a renders provisions least, application and of majority’s construction very (b) (c)(3) a reader in total bewilderment and leave subsections to helping meaning provisions. of the Instead as to the § 123’s and associated with vagueness overbreadth cure the conduct, majori- annoying alarming or prohibition against (c)(3) (b) of subsections and ty’s application construction and vagueness. overbreadth and the statute’s exacerbate (c)(3) discussed, requires subsection the State previously As offense, § 123 the defen- an of the prove, as element “[wjithout legal purpose.” provi- If this conduct was dant’s broad, it plain, ordinary meaning, would given sion its were vagueness the overbreadth materially help overcome alarming con- prohibition against annoying in a inherent (c)(3), applied plain language of subsection duct. Under the letters, would be if the letters solicited illegal purpose an crime, in a criminal to commit a or were involved someone statute, in violation of another conspiracy, or contained threats postal in violation of law or matter federal contained smuggled out of a correctional institution regulations, or were for an regulations, plans or discussed prison in violation Many examples illegal purposes escape prison. from other letters, illegal could forth. But what is about series be set postal regulations, from permitted by prison presumably boyfriend containing expressions reli- an obsessive former beliefs, con- feelings, apologies past gious emotional connection, judge’s the trial remarks to Gallo- duct? this prison first in 1995 are way when he was sentenced Thieme, stated: Judge sentencing judge, then pertinent. every day. nothing I can do can write her There “[Y]ou ' nothing I phone; it. You can call her on the there is about it.” can do about bar, opinion denying trial case at in his judge motions, to hold that pre-verdict
defendant’s seemed Gallo- they way’s legal purpose without a because were letters were explain why “personal” did not communica- “personal.” He *59 purpose, non-personal tion is without a a com- legal whereas legal meaning would If purpose. munication have the “[wjithout (c)(3) “personal” subsection is that all conduct is legal purpose,” very subsection would do little to cure the the vagueness punishing and in a statute overbreadth inherent conduct. annoying alarming indicates, I majority agree, “legal purpose”
The and meaning phrase has a clearer and more definite than the “legitimate purpose” found in which some statutes have been “ in jurisdictions, ‘[l]egal’ invalidated other and that derives “ law,” from or in ... ‘legitimate’ encompass- is found whereas 636-638). legal beyond.” (Opinion es that which is and at us, however, majority “legal” fails what to tell is not respect sending type of the involved. letters here
Finally, simply its majority opinion by stating: the concludes “It also is evident from the record that Petitioner acted 652). legal purpose.” (Opinion without a at We are not informed as to in what the record makes this evident. The (c)(3) today gives utterly Court no meaning to subsection proceeds as if in the element were not the statute. Under circumstances, majority’s repeated these the upon reliance (c)(3), language helping subsection as restrictive to cure vagueness, 123’s overbreadth leaves one dumbfounded. majority’s The same is excep- true the treatment of the (b) tion in “peaceable activity subsection to ... intended provide if Again, exception information to others.” this were broad, given plain, ordinary meaning, its help it would also in curing vagueness statutory prohi- the overbreadth and the against bition annoying alarming majori- conduct. And the ty broad, initially exception exempting indicates the “ from coverage ‘constitutionally protected statute’s activi- ” 638). ty.’ (opinion Nevertheless, at majority goes on to views, hold that Galloway’s expressing religious letters feel- of consti- expression do not constitute the ings, apologies it activity. majority’s opinion, tutionally protected Under sect, religious of a that the conduct of minister appear would setting pamphlets unwanted letters or repeatedly who sends Galloway’s, persons who are religious views similar to forth them, exception within the annoyed by would not fall seriously (b) criminally punished. and could be On in subsection hand, majority, repeated “commercial according to the other concerning “store sending and the “leaflets” solicitations” 638), by exception in protected at are openings” (opinion (b). majority suggested The distinctions subsection (b) are, least, puzzling. say concerning subsection “legal element subsec- regard purpose” to both the With (c)(3) (b), majority’s exceptions and the subsection tion opinion of the position is set forth towards the end ultimate 650, emphasis supplied): (Opinion the Court states where letters, however, Galloway was warned “After the initial few *60 communi- that did not wish to receive multiple times Javin notwithstanding, him. instructions he cations from Those by sending large.number of addition- continued his course this, reasonably From a reasonable fact-finder al letters. was, fact, intent in to harass Galloway’s could conclude Javin, activity, than to in a merely engage peaceable rather a legal purpose.” with that, of saying to if the element majority
The seems intent (c)(1) established, activity” “peaceable then the subsection is “[wjithout (b) inapplicable in and the exceptions subsection are (c)(3) proven. in subsection is This legal purpose” element (b) (c)(3) entirely nugatory. subsections and approach renders statute, Obviously, wording structure and of the under the single than a intent. one can send a communication more harass, alarm, to annoy,” or and also intend can intend “to One by an accompanied information. If conduct is not furnish alarm, harass, annoy,” prohib- conduct is not “intent to or the ited, statutory exemp- and there is no occasion consider (b) of political providing in for views or the tions subsection 123(b) expression §in for the exception information. The communicating only of information be- political views or the expression or com- pertinent meaningful and when the comes alarm, harass, annoy. is munication with the intent public if a for office majority’s reasoning, candidate Under “plethora”7 campaign literature to a repeatedly mails recipi- person, having after been informed that the particular literature, a fact- political not wish to receive such ent does had an intent finder could determine that the candidate annoy violated this criminal statute and that the candidate I expression political views. despite exception language not that either the the First do believe Maryland or Article 40 of the Declaration Amendment Rights permit would this result. “[wjithout in
Similarly, legal purpose” element subsec- (c)(3) totally tion distinct from the “intent” element (c)(1). 27, § prove subsection Under Art. the State must harass, alarm, or both that the defendant had the “intent and that conduct annoy person” the other the defendant’s was “[wjithout legal purpose.” majority, by contrasting legal purpose, suggesting intent to harass with negates any legal purpose, merged to harass has two intent Furthermore, majority’s distinct into under the elements one. (b) statute, Maryland view of the neither subsection nor (c)(3) language limiting subsection can serve the over- (c) (c)(1). vagueness breadth and inherent subsections (c)(1) (b) (c)(3) proof If of the intent element means inapplicable, they obviously are upon are restrictions punishment annoying statute’s broad of intentional or alarm- ing conduct.
C. majority opinion acknowledges The courts in that other statutes, jurisdictions prohibiting have held that harassment alarm, “to annoy, person, conduct intended or harass” another fact, unconstitutionally vague. are overbroad In and/or Opinion at 650. majority past years, dealing of cases over the with the constitutionality under the First and Fourteenth Amendments Maryland’s of harassment statutes similar to Art. statutes unconstitutional. The Court have held that such are however, on today, purports distinguish some those cases Maryland statute has “inherent limita- grounds in requirement “legal purpose” tions” such as the of no (c)(3) exception “providing] or the information subsection (b), Maryland in and that the statute “is to others” subsection salvageable employ limiting because we shall construction” by inserting person” in the words “reasonable subsection 619). (c)(1). (Opinion majority The also announces that jurisdictions “we shall not follow those have found harass- (Ibid.). unconstitutionally vague.” ment statutes in B For set forth above Part II of this the reasons “[wjithout in opinion, legal purpose” element dissenting (c)(1), (b), in exceptions and the subsection subsection applied by majority today, and are not “inherent construed Instead, interpretation majority’s appli- limitations.” and provisions cation of those enhance the statute’s overbreadth below, Furthermore, vagueness. as discussed the inser- (c)(1) person” language tion of “reasonable subsection does vagueness and overbreadth of a statute cure inherent intentionally “annoys” criminally punishes which one who else, regardless “alarms” of whether the latter is a someone person.” “reasonable verdict, rendering judge his trial found specifically annoy Galloway intended “to harass” within the (c)(1)
meaning
(emphasis supplied).
judge,
of subsection
The
however,
explain
“annoy”
did not
the difference between
“harass,”
say
Galloway
if
had.
any, and did not
which intent
Cincinnati,
Coates v.
Supreme
Court
1686, 1687-1688,
29 L.Ed.2d
criminally punished persons
an
which
who
held that
ordinance
engaged
on a sidewalk and
“conduct” which was
assembled
“unconstitutionally
“annoying
persons passing by”
was
vague
subjects
right
assembly
because it
the exercise of the
standard,
unconstitutionally
to an
unascertainable
broad
*62
it
punishment
constitutionally pro-
because
authorizes the
vagueness,
Supreme
tected conduct.” As to
contin-
Court
(402
217-218):
ued
U.S. at
“Conduct that some does not others. Thus, in vague, the ordinance is the sense that it requires person imprecise to conform his conduct to an standard, comprehensible but but normative rather no specified sense that standard of conduct is at all. As a result, of common intelligence necessarily guess ‘men must Co., meaning.’ at its Connally General Construction 385, 391, U.S. 70 L.Ed. 328.
“It is enough said that the ordinance is broad to encom pass many types clearly city’s of conduct within the consti so, power prohibit. indeed, tutional city And it is. The is prevent people sidewalks, free to from blocking obstructing traffic, streets, assaults, littering committing engaging countless other forms of antisocial conduct. It can do so through the enactment and enforcement ordinances di rected with specificity reasonable toward the conduct be prohibited. 111, 118, 124-125, Gregory Chicago, 394 U.S. 946, 950, 953-954, 134, 139-140, 89 S.Ct. 22 L.Ed.2d 143-144 (Black, J., concurring). It cannot constitutionally do so through the enactment and enforcement an ordinance may whose violation entirely depend upon or not whether policeman annoyed.”
The same may be said of the “conduct” prohibited by (a) Except for the statement subsection that the conduct a pattern consisting acts, must be of a series of neither the majority opinion words the statute nor the in this case tell type us what of “conduct” is prohibited. The word “conduct” virtually itself covers range activity, the entire of human only statutory limitation as to type of conduct is that it repeated seriously annoying alarming. majority’s The insertion of a person” “reasonable standard nothing does little or vagueness. cure the Supreme language Court’s in Coates is still applicable even with “[cjonduct standard, i.e., insertion of a reasonable annoys people some annoy [reasonable] does not others.” Repeated L.Ed.2d at 217. at his boyfriend, setting forth former
letters from an obsessive
conduct,
his
expressing
apologizing
past
feelings,
but
views,
recipients
reasonable
might annoy some
religious
*63
reasonable
recipients. While some
annoy
not
other reasonable
might
persons
annoyed, other reasonable
persons might be
letters,
“get a
suggest that the sender
such
or
simply ignore
him as
life,”
help, or view
suggest
professional
that he seek
or
Although
foolish,
sorry for him.
merely
feel
immature and
type
of the
been a victim
anyone
previously
who had
almost
in
had committed
Galloway
activity
criminal
letters,
by
repeated
the
annoyed and alarmed
1995 would be
of it is
majority’s interpretation
statute nor the
neither the
discussed, § 123 is not
As earlier
to this situation.
confined
in-
prior criminal
to circumstances where there was
limited
harm,
victim,
prior
or a
prior
threats
with the
volvement
a limited statute
protective order. Such
domestic violence
statute, in the
muster.
a
pass constitutional
Such
might well
Cincinnati,
to be “directed
appear
would
language of Coates
prohibit-
to be
toward the conduct
specificity
with reasonable
L.Ed.2d at 217.8
at
402 U.S. at
ed.”
123, however, partic-
annoying
conduct in
prohibition of
The
majority,
vague
is as
as the
interpreted by the
ularly as
in Coates.9
prohibition in the statute involved
statute
also found that the
Supreme Court
Coates
The
Amendment,
First
in violation of the
involved was overbroad
Kentucky,
(Ky.App.
947 S.W.2d
8.
Monhollen v. Commonwealth of
Cf.
where,
1997)
statutory
stalking
lan
(upholding
under
the
a
conviction
prior protective order or criminal
guage, there had been a
victim).
majority
present
involving
opinion in the
case
same
The
the
629-631), although the statute involved
(opinion at
relies on Monhollen
restrictive, clear,
specific than
obviously
in Monhollen was
more
27, §
Maryland’s
123.
Art.
27, §
a
Art.
the insertion of
more limited statute than
a much
vague
might help
the
person”
to cure some of
"reasonable
standard
case relied on
the situation in the Indiana
ness. This was
25),
restricted to
majority (opinion
n.
where the statute was
at
Indiana,
(1980).
Kinney
harassing
Similarly, First and the Fourteenth as well as Maryland Rights, Articles 36 and 40 of the Declaration of ordinarily preclude would criminally punishing a state from views, who expressing feelings, religious one writes letters apologies, to with whom previously someone the writer had Again, cohabited. provisions might while these constitutional punishment allow such particular pres- under the facts of the case, statutory language ent neither the nor majority’s the interpretation the statute is so As Supreme limited. the Cincinnati, emphasized Court in Coates v. and numerous cases, conduct protected by other otherwise the First Amend- 628) majority (opinion stalking relied on the at where the statute 123, alia, § required there involved was more limited than as it inter ... place "credible threat with the intent in reasonable great bodily People injury." Ewing, fear of death or The v. 76 Cal. 177, addition, (1999). App.4th Cal.Rptr.2d 90 Ewing conviction in was reversed insufficient evidence. merely it prohibited punished or because ment cannot be unrest, offends, objec- or or induces or is annoys, angers, or See, to, Texas v. e.g., is obnoxious to others. tionable or 2542, 397, 408-409, Johnson, 491 U.S. S.Ct. (1989) alia, v. (relying, inter on Coates L.Ed.2d Hill, 451, 459-467, Cincinnati); Houston v. 482 U.S. City of 2502, 2508-2512, 2512, 96 L.Ed.2d 410-415 Wilson, 518, 521-528, (1987) (same); Gooding v. 405 U.S. (1972); 1103, 1105-1109, 413-418 Cohen 31 L.Ed.2d S.Ct. 15, 21-25, 1780, 1786-1788, S.Ct. California, (1971); Maryland, supra, 291-294 Bachellar v. L.Ed.2d at 573-574. 25 L.Ed.2d 397 U.S. at Moreover, to in and similar persons” “other referred these general public; large segments cases have often been per- consequently, they would seem to include “reasonable sons.” Supreme holdings majority distinguishes Court’s Cincinnati, is distin- saying: Maryland “The
Coates of conduct and re- guishable proscribes because it course ...” specific part intent on the the defendant quires 16). Coates, (opinion at n. The ordinance involved like 123, prohibited “annoying.” “conduct” which was While the required repeated activity, not this may ordinance have Coates vagueness no difference has little or relevance punishing “annoying” conduct. The overbreadth inherent clarify vagueness or over- repetition factor of does “annoy” words or “alarm.” The breadth associated “annoy.” adjective of the “serious” which modifies same true may requirements repetition seriousness While *65 statute, prosecutions the number of under the slightly reduce “annoy- they light prohibited shed no on what constitutes the Moreover, activity protected by is the ing'conduct.” where Maryland and Articles 36 and 40 of the First Amendment Rights, protection applies repeated of the activ- Declaration ity single episode.10 as well as a 631-632) majority (opinion the 10. at relies on two cases for requirement repeated mitigates against assertion that a of conduct Likewise, annoy or requirement specific the of a intent to (c)(1) Maryland alarm in of not subsection the statute does any type “annoying” cast on what of is light criminally conduct “alarming.” vague language or The same and broad used in (c) (c)(1) initial part the of subsection is also used subsection containing requirement. Prohibiting the intentional intent just unknown conduct as as vague prohibiting unintentional unknown conduct.
Furthermore, activity protected by the First Amendment
Maryland
Rights
and Articles 36 and 40 of
of
Declaration
fact,
protected
remains
when it is
In
most con-
intentional.
protected by
rights
duct
of speech
freedom
and freedom
religion
exceptions
applicable
is intentional. With a
few
here, neither
nor
the element
intent
the element of malice
speech
removes from oral or
protections
written
First Amendment and
36 and 40 of
Declaration of
Articles
Rights.
Supreme
pointed
As
out in Hustler Maga-
Court
Falwell,
46, 53,
zine v.
485 U.S.
108 S.Ct.
99 L.Ed.2d
(1988),
“many things
done
motives that are
than
less
admira-
protected by
ble are
the First
In
Amendment.
Garrison v.
Louisiana,
(1964),
Johnson v.
under
harassment
is Bolles v.
documents,
“annoying”
large
number of
written
Colorado,
(1975).
394,
P.2d 80
The
People of
189 Colo.
541
Bolles were
defendant mailed to various
facts
contained,
mail
in a
pieces
piece
2400
of mail. Each
of
homes
points
regarding
of information
abor-
plain envelope, “twelve
It also
a color brochure
practice....
tion and its
included
baby.”
and
live
portraying
numerous
aborted fetuses
one
Colo,
Bolles,
396,
was
189
at
“However, proscribe unprotected a statute intended to *67 activity must not also proscribe activity protected under the First Amendment. short, area, in
“In the First Amendment a statute must narrowly implement be drawn to legitimate and constitu- legislative purposes. tional in anything
“The statute before us this case is but nar- could, course, rowly upon drawn. It of to punish be relied obscene, libelous, riotous communication which is proba- bly constitutionally permissible. Yet the crucial factor is that this statute could also to prosecute be used for commu- nications that cannot constitutionally proscribed. statute,
“To illustrate the overbreadth of this it is useful to first define some of significant the terms used in the According statute. to New Webster’s International Dictio- (3d nary English 1961), the Language, Unabridged, ed. of ‘annoy’ nettling means ‘to irritate with a or exasperating ‘Nettling’ displeasure, effect.’ means ‘to impatience, arouse anger provoke, in: vex.’ ‘Alarm’ means ‘to to a arouse alert; danger; put fear; of to on sense to strike with fill anxiety as to danger threaten or harm.’ “If place we substitute these definitions in of the terms statute, in used we find that is guilty one of the crime of harassment if person-arouse he intends to ‘alarm’ another to a of danger-and sense communicates that other in likely manner cause alarm. It would therefore be storm, criminal in Colorado to predict political forecast trends, against illnesses, warn or discuss anything that is of any significance.
“So, also, if annoy one has the intent to irritate with a —to nettling or exasperating effect—and he communicates with another in a likely manner that is put cause alarm —to on guilty alert —he too is of absurdity harassment. The of patently this is obvious to anyone who society envisions our First languid repose. a state of anything in but stuff.” is made sterner Amendment “attempted case had to save court the Bolles The lower by engrafting attack from successful constitutional the statute engaged applied only that it conduct onto it a statement ” Bolles, at 541 P.2d purpose.’ Colo. legitimate for ‘no Court, however, pointed out Supreme at 83. The Colorado into language “injects vagueness that the inserted itself scrutiny.” cannot withstand First Amendment statute which “[wjithout legal purpose” element Ibid. The same is true applied by Maryland statute as construed majority today. argument in Bolles that a respect prosecution’s to the
With
justifies
in the home
the broad
recipient’s “right
privacy
Colo,
(189
question”
subsection
wording
*68
(ibid.):
83),
Supreme
responded
Court of Colorado
P.2d at
the
convey
message
one’s
no doubt
“Use of the mail
home; however,
sanctity of
the
on the
encroaches
recipient’s privacy
only
into
minimal since
intrusion
only
any
to discard at once
mail that he does
he is not
free
receive,
can also
that
will not
not wish to
but
ensure
he
any
it from
sender. See Rowan v.
receive
more like
supra.”
Post
Department,
United States
Office
Price,
is Kramer v.
Factually
present
similar to the
case
(5th Cir.1983), in
which the United States Court
F.2d
Circuit,
opinion by Judge
Fifth
in an
John
Appeals for the
Wisdom,
Texas harassment statute was
Minor
held
also
unconstitutionally vague. The Texas statute was
more
statute,
proscribed
as
specific
Maryland’s
than
harassment
types
statute was limited to certain
conduct under the Texas
provided
communications.
It
for the
telephone
and written
intentionally
by
“communicates
tele-
punishment of one who
obscene,
in
or indecent
phone
writing
vulgar, profane,
or in
and, by
or in a coarse and offensive manner”
such
language
recklessly annoys intentionally, knowingly, “action
in
12. (opinion
out
Kramer,
Appeals
regard
United States Court of
vagueness,
upon
relied
interpret
the failure of the Texas Courts to
the statute as
incorporating
a "reasonable
majority
standard.” What the
blurs,
opinion overlooks or
is that the court in Kramer found two
“infirmities” in the
Texas statute which could have been cured
state
*69
interpretations
court
but were not. The first was that the "Texas
attempt
Courts have
'annoy’
made no
to construe the terms
and 'alarm'
in a
vagueness.”
manner which lessens their inherent
N.E.2d 329 cases, proscrib a statute v. Cincinnati and similar Coates on Bryan, v. State annoy); calls with intent ing telephone (1996) 212, out 147-148, (pointing P.2d 216-217 Kan. Cincinnati, followed courts have Coates v. that, “[o]ther since determining prohibiting that statutes holding in Coates Jamgoc v. impermissibly vague”); State conduct are annoying (1971) (holding hian, 17, 24, 279 A.2d 109 R.I. Cincinnati, portion under Coates unconstitutional, to stand on a for a making it unlawful an ordinance State, alia, May v. inter and, “annoy passers-by”); sidewalk (“the inherent (Tex.Crim.App.1989) 765 S.W.2d ..., what attempting to define statute vagueness of the it to unconstitutional ... causes be annoys people, and alarms Moore, Wash.App. Everett v. vague”); City ly (1984) (In of an holding provisions 683 P.2d under Coates v. Cincinnati statute are invalid harassment “does not draw cases, stated that the statute the court similar annoying conduct kind of line between the reasonably clear Dronso, not”); State that which is criminal and which is (“A (1979) N.W.2d Wis.2d ... to criminal sanctions telephone caller subjects which may as it annoy ... is overbroad calling with intent speech which prohibit free reasonably interpreted States and Wis by both the United constitutionally protected Constitutions”).13 consin flat state majority opinion in at bar makes the case
13. At times the by Art. without and what is not covered ments about what is example, as satisfactory For setting any basis for the statements. forth that alarms or prohibition of "a course of conduct to whether "[tele]phone from credi annoys person” covers calls seriously another tors,” way in no intended majority that the statute "was states situations,” history. legislative and cites its discussion of the cover such 635-637). Nothing legislative history forth in the set (Opinion at 612-613) (id. slightest support to the opinion lends the majority report Proceed majority’s While the of the Senate Judicial assertion. Committee, majority, "disputes between quoted by refers to ings goes girlfriends,” report on boyfriends and neighbors, former [and] beyond generally. might be What covered to harassment to refer disputes boyfriend-girlfriend is not disclosed neighbor disputes and history history statutory language. The legislative or the either *70 D. discussed, previously narrowly targeting
As drawn statute here, Galloway’s, might conduct like under the circumstances Moreover, might constitutional. well be itself well be majority if willing give constitutional were to effect to the (b) language plain broadly exempts of subsection which (c)(3) providing of information and of subsection which re- quires prove illegality Giving the State to of purpose. effect (b) (c)(3) plain language to the of subsections and would (c) substantially clarify vague limit and the broad and in words (c)(1). course, giving and Of effect to the words of subsections (b) (c)(3) and require Galloway’s would reversal conviction present in the all respect, case. With due it is anomalous (c)(1) majority willing re-write subsection order conviction, sustain it willing apply but is not the literal (b) language Assembly enacted General subsections (c)(3) which would result a reversal. This case is example saying a classic of the that hard cases make bad law. No reasonable would condone Gallo- Nevertheless, way’s atrocious conduct. sustaining his convic- day tion and 90 obfuscating additional sentence is not worth language of statutory provisions failing apply impor- tant safeguards. constitutional
I would reverse. Judge
Chief BELL and Judge RAKER have authorized me they to state that concur with expressed the views herein join dissenting this opinion. statutory (c) (c)(1) language certainly set forth in subsection are enough
broad repeated telephone to cover unwanted calls from credi tele-marketers, particularly tors and at dinner time.