129 P.3d 682 (Nev. 2006), 44825, Silvar v. Eighth Judicial Dist. Court ex rel. County of Clark

Docket Nº:44825.
Citation:129 P.3d 682
Opinion Judge:OPINION PER CURIAM.
Party Name:Lani Lisa SILVAR, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CLARK, and the Honorable John S. McGroarty, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
Attorney:Robert L. Langford & Associates and Susan D. Burke, Las Vegas, for Petitioner., George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Sonia V. Jimenez, Deputy District Attorney, Clark County, for Real Party in Interest.
Case Date:March 16, 2006
Court:Supreme Court of Nevada
 
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129 P.3d 682 (Nev. 2006)

Lani Lisa SILVAR, Petitioner,

v.

The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CLARK, and the Honorable John S. McGroarty, District Judge, Respondents,

and

The State of Nevada, Real Party in Interest.

No. 44825.

Supreme Court of Nevada

March 16, 2006

Page 683

Robert L. Langford & Associates and Susan D. Burke, Las Vegas, for Petitioner.

George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Sonia V. Jimenez, Deputy District Attorney, Clark County, for Real Party in Interest.

Before the Court En Banc.

OPINION

PER CURIAM.

In this case, we consider whether Clark County's prostitution loitering ordinance is unconstitutionally vague or overbroad. Petitioner Lani Lisa Silvar was arrested in Clark County, Nevada, for allegedly violating Clark County Ordinance (CCO) 12.08.030. The Las Vegas Justice Court dismissed the complaint, concluding that the ordinance was unconstitutionally vague and overbroad. The district court reversed and remanded, upholding CCO 12.08.030's constitutionality. Silvar

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now petitions this court for a writ of certiorari, challenging the district court's decision. We grant her petition and conclude that CCO 12.08.030 is both unconstitutionally vague and overbroad.

FACTS AND PROCEDURAL HISTORY

While patrolling in an unmarked vehicle, a Las Vegas Metropolitan Police Department detective observed Silvar standing on the corner of Fremont and Atlantic Streets in Clark County, Nevada. Silvar entered the detective's vehicle and allegedly asked the detective if he was "dating," a street term synonymous with seeking prostitution. The detective replied affirmatively. Silvar then became nervous, said to forget it, and attempted to exit the vehicle. The detective identified himself as a vice officer and gave Silvar an opportunity to explain her actions. According to the detective, Silvar admitted she was working as a prostitute and stated that she had recognized the detective from a previous arrest for solicitation, became nervous, and decided against proceeding.

Silvar was arrested and charged with loitering for the purpose of prostitution, a violation of CCO 12.08.030. CCO 12.08.030 states:

It is unlawful for any person to loiter in or near any public place or thoroughfare in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting for or procuring another to commit an act of prostitution.

Among the circumstances which may be considered in determining whether such purpose is manifested are that such person repeatedly beckons to, stops, attempts to stop or engages persons passing by in conversation, or repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture. No arrest shall be made for a violation of this section unless the arresting officer first affords such person an opportunity to explain such conduct, and no one shall be convicted of violating this section if it appears at trial that the explanation given was true and disclosed a lawful purpose.

Silvar moved to dismiss the complaint against her, arguing that CCO 12.08.030 was unconstitutionally vague and overbroad and that it violated her right against self-incrimination. 1 The Las Vegas Justice Court granted Silvar's motion, and the State appealed to the district court. After hearing arguments on the matter, the district court reversed the justice court order and upheld the constitutionality of CCO 12.08.030.

Silvar now petitions for a writ of certiorari, challenging the district court's decision. Because Clark County's prostitution loitering ordinance is both unconstitutionally vague and overbroad on its face, we grant Silvar's petition.

DISCUSSION

We are authorized to review a petition for a writ of certiorari in cases where a district court has considered the constitutionality of a statute or ordinance. 2 The constitutionality of a statute is a question of law that we review de novo. 3 Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional. 4 In order to meet that burden, the challenger must make a clear showing of invalidity. 5 We conclude that Silvar has met her burden and made a clear showing that CCO 12.08.030 is both unconstitutionally vague and overbroad.

I. Because CCO 12.08.030 is unconstitutionally vague, we grant Silvar's petition

The void-for-vagueness doctrine is predicated upon a statute's repugnancy to the Due Process Clause of the Fourteenth Amendment to the

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United States Constitution.6 A statute is unconstitutionally vague and subject to facial attack if it (1) fails to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct is prohibited and (2) lacks specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement. 7 The first prong is concerned with guiding those who may be subject to potentially vague statutes, while the second--and more important--prong is concerned with guiding the enforcers of statutes.

By requiring notice of prohibited conduct in a statute, the first prong offers citizens the opportunity to conform their own conduct to that law. 8 However, the second prong is more important because absent adequate guidelines, a criminal statute may permit a standard less sweep, which would allow the police, prosecutors, and juries to "pursue their personal predilections." 9

A. Because it does not provide adequate notice of prohibited conduct to citizens, CCO 12.08.030 is unconstitutionally vague

An ordinance may be struck under the vagueness doctrine's first prong if it does not provide adequate notice to the public of the prohibited conduct. Without adequate notice, citizens would be frustrated in their attempts to conform their conduct to the contours of the statute. Because CCO 12.08.030 violates the first prong by failing to provide adequate notice, Silvar argues that the ordinance is unconstitutionally vague. We agree.

Two phrases in CCO 12.08.030 conspire to deprive the public of adequate notice of prohibited conduct. First, the phrase "in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting for or procuring another to commit an act of prostitution" is unduly open-ended. 10 A person of ordinary intelligence who carefully reads CCO 12.08.030 could not be sure what specific acts "manifest" illegal activity. 11 In Akron v. Rowland, the Supreme Court of Ohio found such wording unconstitutional because "an average person who lives or works in a high-crime neighborhood could not be sure whether just standing on the street in front of his or her home or workplace might 'manifest' something illegal." 12

Second, the phrase "[a]mong the circumstances which may be considered in determining whether such purpose is manifested" is also unduly open-ended. As the Ohio Court of Appeals noted in Cleveland v. Mathis, "[t]he word 'among' indicates there were other circumstances to form the basis of an arrest and conviction." 13 Similarly, the word "may" has been construed as permissive rather than mandatory, which indicates that nonenumerated factors can be considered. 14 Based on these two phrases, we conclude that CCO 12.08.030 embodies a lack of specificity that is fatal to the ordinance.

Because the ordinance does not provide adequate notice of prohibited conduct, which would enable persons of ordinary intelligence to conform their conduct to the law, CCO 12.08.030 is unconstitutionally vague under the first prong of the vagueness doctrine.

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B. Because it does not provide adequate law enforcement guidelines, CCO 12.08.030 is unconstitutionally vague

In many cases, courts have also struck down prostitution loitering ordinances under the vagueness doctrine's second--and more important--prong, which requires adequate guidelines to prevent arbitrary enforcement. Without these adequate guidelines, the ordinances risk arbitrary and discriminatory enforcement. Because CCO 12.08.030 lacks any guiding circumstances, Silvar argues that the ordinance has an even broader sweep than similar stricken ordinances, thus heightening its unconstitutionality. Using the same standard as...

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