Brown v. Municipality of Anchorage

• Decision Date: 08 September 1978
• Docket Number: 2989 and 2863,Nos. 2961,2936,s. 2961
• Citation: 584 P.2d 35
• Parties: Olivia Lee BROWN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. Candace CLARK, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. Tiela JONES, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. Jean Ann WONG, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
• Court: Alaska Supreme Court

Page 35

584 P.2d 35

Olivia Lee BROWN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Candace CLARK, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Tiela JONES, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Jean Ann WONG, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Nos. 2961, 2936, 2989 and 2863.

Supreme Court of Alaska.

Sept. 8, 1978.

Sue Ellen Tatter and Sandra K. Saville, Kay, Christie, Fuld & Saville, Anchorage, for appellant Brown.

Allen M. Bailey, and William F. Reeves, Municipal Prosecutors, and Richard W. Garnett, III, Municipal Atty., Anchorage, for appellee.

William F. Bulchis and Richard B. Collins, Collins, Inc., Anchorage, for appellants Clark, Jones, and Wong.

OPINION

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.

CONNOR, Justice.

This consolidated appeal arises from four criminal cases based on Anchorage Municipal Ordinance 8.14.110 which prohibits loitering for the purpose of solicitation of prostitution. This ordinance, which we will refer to as AO 8.14.110, provides as follows:

"No person will loiter in or near a thoroughfare or place open to the public in a manner and under circumstances manifesting the purpose of, inducing, enticing, soliciting or procuring another to participate in an act of prostitution. Among the circumstances which may be considered in determining whether such purpose is manifested are that such person: is a known prostitute or panderer; repeatedly beckons to, stops, attempts to stop, or engages male passersby in conversation; or repeatedly stops, or attempts to stop, motor vehicle operators by hailing, waving of arms, or any other bodily gestures. 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 discloses a lawful purpose. For the purpose of this section, a 'known prostitute or panderer' is a person who within five years previous to the date of arrest for violation of this section has within the knowledge of the arresting officer been convicted of violating a provision of the city of Anchorage, state of Alaska, or a political subdivision thereof, defining and punishing acts relating to prostitution or lewdness which are similar to those acts proscribed by this section."

Separate issues are raised in each of these appeals. However, because we find the ordinance in question to be unconstitutionally vague and, therefore, void, we need not consider appellants' other claims of error. ¹

As we observed in Marks v. City of Anchorage, 500 P.2d 644, 646 (Alaska 1972), a vague statute violates the due process clause if "its indefinite contours confer unbridled discretion on government officials and thereby raise the possibility of uneven and discriminatory enforcement." ² A literal reading of the ordinance before us discloses such an infirmity. AO 8.14.110 sets out separate and disjunctive circumstances which may be considered in determining whether a person who is loitering manifests the purpose of soliciting for prostitution. One such circumstance is that the person "is a known prostitute or panderer." Thus anyone known to police to have committed a prostitution-related offense within the past five years is subject to arrest under this ordinance if he or she is found "loitering."

Applying a dictionary definition of the word "loiter", one could conclude that the ordinance makes it a crime for a previously convicted prostitute or panderer to "spend time idly;" to "linger in an aimless way;" or "to walk or move slowly and indolently, with frequent stops and pauses." ³ As Mr. Justice Douglas observed in Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 844, 31 L.Ed.2d 110, 116-117 (1972), the virtues of aimless strolling have been sung by such giants of American literature as Walt Whitman, Vachel Lindsay, and Henry David Thoreau. When engaged in by most citizens, such activities as sauntering down a public sidewalk or pausing on a street corner would carry no criminal liability. If a formerly convicted prostitute or panderer, however, should engage in window shopping, or standing on a street corner to wait for a bus, he or she could be found guilty of violating the Anchorage municipal ordinance without committing any overt act demonstrating that he or she induced, enticed, solicited, or procured another to engage in an act of prostitution. This would mean that a previously convicted prostitute or panderer could stand on a public street corner or walk slowly down a public sidewalk only at the whim of any police officer.

"The constitutional vice of so broad a provision needs no demonstration. It 'does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.' " ⁴

The Municipality argues that the ordinance does not encourage arbitrary arrests and convictions because of the narrowing effect of the reference in the ordinance to known prostitutes and panderers. However, "not even past violation of the criminal law authorizes one's subjection...