State v. Korsen

• Decision Date: 24 April 2003
• Docket Number: No. 28276.,28276.
• Parties: STATE of Idaho, Plaintiff-Appellant-Cross Respondent, v. David William KORSEN, Defendant-Respondent-Cross Appellant.
• Court: Idaho Supreme Court

69 P.3d 126

138 Idaho 706

STATE of Idaho, Plaintiff-Appellant-Cross Respondent, v. David William KORSEN, Defendant-Respondent-Cross Appellant.

No. 28276.

Supreme Court of Idaho, Boise, January 2003 Term.

April 24, 2003.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.

Alan E. Trimming, Ada County Public Defender; Christian Dean Collins, Deputy Public Defender, Boise, for respondent. Christian Dean Collins argued.

WALTERS, Justice.

This appeal by the State seeks review of a decision by a magistrate that held a provision of Idaho's trespass statute, I.C. § 18-7008(8), unconstitutional because of vagueness. The magistrate's decision was upheld on an intermediate appeal to the district court and, upon an alternative analysis, the district court further ruled that the statute in question was unconstitutional also on grounds of overbreadth. By cross-appeal, the respondent, David Korsen, contends that the district court erred in concluding that Korsen was not protected under double jeopardy principles against a retrial in the event of a remand resulting from the appellate process.

This Court holds that the statute does not violate the Constitution as found by the courts below, either on grounds of vagueness or overbreadth. This Court also concludes that double jeopardy does not prohibit retrial of the trespass charge against Korsen.

FACTUAL AND PROCEDURAL BACKGROUND

David Korsen appeared at the office of the Idaho Department of Health and Welfare in Boise to discuss his child support obligations. He informed personnel at the office that he might get loud and that he was not going to leave until he obtained some relief regarding his support requirements. He learned from the social worker that only the court could grant the relief he was seeking through making adjustments to child support payments he owed. The discussion grew louder and louder and, although Korsen did not use profanities or make any threats, he refused to leave the offices. The police were called, and Korsen was arrested at the scene on a charge of trespass under I.C. § 18-7008(8), because he refused to leave after being asked by the regional director of the department, who was in charge of the offices, to vacate the premises.¹

The case was set for trial. At the close of the state's evidence, the magistrate dismissed the trespass charge. The magistrate concluded that the statute violated the Constitution because it was void for vagueness as applied to public property and because the statute failed to properly inform a person on public property about the specific conduct prohibited by the statute. The magistrate alternatively granted Korsen's motion for acquittal under Idaho Criminal Rule 29, concluding that insufficient evidence had been presented to support a verdict of guilty on the trespass charge. Specifically, the magistrate ruled that the state failed to prove that Korsen did or said anything to justify the director's request that Korsen leave the premises.

The State appealed to the district court. The district court affirmed the magistrate's dismissal but not solely on the basis that the statute was defective by its failure to inform citizens of the conduct prohibited. The district court determined that the statute also contained no guidelines for enforcement and gave unbridled discretion to law enforcement in its application. Consequently, the district court held that the statute was void for vagueness as applied to public property. As an alternative ground, the district court found that the statute constituted a power of censorship and prior restraint of First Amendment activities and impermissibly allows individuals to be ordered off public premises merely because they express opinions of which those in charge of the property disapprove. The district court therefore held the statute to be overbroad insofar as it applies to public property.

The State appeals from the district court's determination. The State seeks a reversal both of the magistrate's decision and of the district court's decision, and argues for a remand for new trial on the trespass charge. Korsen has cross-appealed, arguing that remand is prohibited by the Double Jeopardy Clause of the Constitution.

ISSUES ON APPEAL

1. Is I.C. § 18-7008(8) valid and not facially void for vagueness, because it is not impermissibly vague in all its applications and because there is a core of circumstances to which the statute can unquestionably be constitutionally applied?

2. Is I.C. § 18-7008(8) valid and not facially overbroad, because it does not regulate a substantial amount of constitutionally protected conduct?

3. Did the magistrate err by granting Korsen's Rule 29 motion for acquittal based upon the State's failure to prove a legitimate reason for asking Korsen to leave the premises, when the statute has no such requirement as one of its elements?

4. Is Korsen protected by double jeopardy principles from a retrial on the trespass charge?

STANDARDS OF REVIEW

Where the issues presented involve the constitutionality of a statute, we review the magistrate's determination de novo. State v. Cobb, 132 Idaho 195, 969 P.2d 244 (1998)

; Sun Valley Co. v. City of Sun Valley, 109 Idaho 424, 428, 708 P.2d 147, 151 (1985). The party challenging a statute on constitutional grounds bears the burden of establishing that the statute is unconstitutional and "must overcome a strong presumption of validity." Olsen v. J.A. Freeman Co., 117 Idaho 706, 709, 791 P.2d 1285, 1288 (1990). Appellate courts are obligated to seek an interpretation of a statute that upholds its constitutionality. State v. Newman, 108 Idaho 5, 13, n. 12, 696 P.2d 856, 864 n. 12 (1985). Whether a defendant's prosecution complies with the constitutional protection against being placed twice in jeopardy is a question of law subject to free review. State v. Santana, 135 Idaho 58, 63, 14 P.3d 378, 383 (Ct.App.2000).

DISCUSSION

Idaho Code, Section 18-7008(8) makes criminal the continued presence of an individual on property that belongs to another after being notified to depart from the property by the owner or agent. The statute exempts only persons in a landlord-tenant relationship and applies to both private and public property.

1. Void for Vagueness

The magistrate determined that I.C. § 18-7008(8), which draws no distinction between public and private property, implicates First Amendment rights of assembly and free speech. The magistrate found that the statute does not properly inform a person about what conduct gives a governmental agent legal cause to demand a person leave public facilities at the risk of criminal prosecution and that criminal liability may attach even if the person is on public property for a "lawful public purpose." The magistrate dismissed the case, holding the statute unconstitutionally vague as applied to public property.

The void-for-vagueness doctrine is premised upon the due process clause of the Fourteenth Amendment to the U.S. Constitution. This doctrine requires that a statute defining criminal conduct be worded with sufficient clarity and definiteness that ordinary people can understand what conduct is prohibited and that the statute be worded in a manner that does not allow arbitrary and discriminatory enforcement. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Furthermore, as a matter of due process, no one may be required at the peril of loss of liberty to speculate as to the meaning of penal statutes. United States v. Smith, 795 F.2d 841, 847 n. 4 (9th Cir.1986), citing Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890 (1939),

Smith v. United States, cert. denied, 481 U.S. 1032, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987). This Court has held that due process requires that all "be informed as to what the State commands or forbids" and that "men of common intelligence" not be forced to guess at the meaning of the criminal law. State v. Cobb, 132 Idaho 195, 969 P.2d 244 (1998),

citing Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605, 612 (1974). A statute may be void for vagueness if it fails to give adequate notice to people of ordinary intelligence concerning the conduct it proscribes, Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th Cir.1984), or if it fails to establish minimal guidelines to govern law enforcement or others who must enforce the statute. Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903, 908-09 (1983); State v. Larsen, 135 Idaho 754, 756, 24 P.3d 702, 704 (2001).

A statute may be challenged as unconstitutionally vague on its face or as applied to a defendant's conduct. For a "facial vagueness" challenge to be successful, "the complainant must demonstrate that the law is impermissibly vague in all of its applications." Hoffman Estates, 455 U.S. at 497, 102 S.Ct. at 1193, 71 L.Ed.2d at 371. In other words, the challenger must show that the enactment is invalid in toto. To succeed on an "as applied" vagueness challenge, a complainant must show that the statute, as applied to the defendant's conduct, failed to provide fair notice that the defendant's conduct was proscribed or failed to provide sufficient guidelines such that the police had unbridled discretion in determining whether to arrest him. A "facial vagueness" analysis is mutually exclusive from an "as applied" analysis. See Schwartzmiller, supra at 1346

.

Neither the magistrate nor the district court examined the constitutionality of I.C. § 18-7008(8) as it applied to Korsen's specific conduct in this case. Nor did they examine the statute in toto. Rather, they...