City of Bellevue v. Miller

Decision Date12 June 1975
Docket NumberNo. 43314,43314
Citation536 P.2d 603,85 Wn.2d 539
CourtWashington Supreme Court
PartiesThe CITY OF BELLEVUE, Appellant, v. Roger W. MILLER, Respondent.

Lee Kraft, City Atty., Leo E. Poort, Asst. City Atty., Bellevue, for appellant.

Francis & McFarlane, D. Michael Tomkins, Seattle, for respondent.

BRACHTENBACH, Associate Justice.

The City of Bellevue appeals from a superior court's determination that a 'wandering or prowling' ordinance is unconstitutionally vague. We affirm.

On October 4, 1973, defendant was placed under arrest for suspicion of burglary. Defendant was eventually released without being charged with burglary, apparently because police investigation revealed certain evidence suggesting that defendant was not the culprit. 1 Instead, after a curious delay of over 1 month defendant was notified by mail that he had been charged with violating Bellevue's vagrancy ordinance. Defendant was convicted in district court of the misdemeanor, 'wandering or prowling,' but he appealed to superior court where his motion to dismiss was granted on the ground that the ordinance is unconstitutionally vague.

Bellevue first contends that the superior court erred in ruling on the constitutionality of the ordinance without hearing the facts of the case. In support of this contention the city relies upon the following language from State v. Dixon, 78 Wash.2d 796, 801, 479 P.2d 931, 934 (1971):

Unless a criminal statute is so glaringly unconstitutional, so palpably in derogation of specifically enumerated and declared constitutional rights that reasonable men could not differ about it, its constitutionality should be tested in the light of some kind of behavior, actual or hypothetical.

That dictum is unfortunately broad. Where it is argued that the language of a legislative proscription is impermissibly vague, either because the enactment fails to give fair notice of what kind of conduct is unlawful or because law enforcement officials and triers of fact are without adequate standards to evaluate the lawfulness of particular conduct, the factual setting out of which the case arose can be wholly irrelevant. Where it is asserted that an entire statute or ordinance fails to specify adequately what activity is prohibited, courts will look to the face of the enactment to determine whether any conviction based upon the proscription could constitutionally be upheld. In such a case, courts are not concerned with the defendant's awareness of the law; the presumption that persons know the law is so familiar that no recitation of authority is required. Neither are courts concerned with the nature of the defendant's conduct. As stated in Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939):

If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. (Citations omitted.) It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression.

Although the factual setting of a case is irrelevant where the entire statute is challenged as vague, a different problem exists where the statute is only partially vague. As explained in Smith v. Goguen, 415 U.S. 566, 577, 578, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974), there are statutes which contain both precisely worded prohibitions and prohibitions of uncertain application, and such a statute, though potentially vague as to some conduct, may nevertheless be constitutionally applied to one whose act clearly falls within the statute's 'hard core.' If, for example, a statute prohibits certain acts but also includes a constitutionally infirm catchall provision, a person ought not succeed in a challenge to the statute on the basis of vagueness If the statute clearly notified the person that the particular act charged was prohibited and there is no danger of an ad hoc determination of guilt resulting from inadequate statutory guidelines. Of course, where the statute is partially vague sufficient facts must be known in order to determine whether or not the person's conduct falls within a specific proscription. The Bellevue ordinance at issue in this case does not have specific and nonspecific parts; we need not be concerned with the question of whether defendant's conduct falls within a 'hard core' of prohibited activity. Smith v. Goguen, Supra at 578, 94 S.Ct. at 1242. We conclude, therefore, that examination of the factual setting of this case is unnecessary and would, in fact, be superfluous to a determination of whether or not the Bellevue ordinance is on its face unconstitutionally vague.

The legislation in issue, Bellevue Ordinance 1085, § 1, codified as Bellevue City Code § 7.40.080, provides in part:

Wandering or prowling. Any person who wanders or prowls in a place, at a time, or in a manner, and under circumstances, which manifest an unlawful purpose or which warrant alarm for the safety of persons or property in the vicinity is hereby declared to be a vagrant, and is guilty of a misdemeanor.

This part is followed by a section listing examples of behavior which may be considered as manifesting an unlawful purpose or warranting alarm, 2 and a third section requiring that the wanderer or prowler be afforded an opportunity to 'dispel any alarm' by explaining his or her presence and conduct. 3 The ordinance is patterned upon the Model Penal Code, Proposed Official Draft § 250.6 of The American Law Institute (1962). 4

The requirement that criminal legislation be definite in language is premised upon two considerations, the first being that citizens must have notice of what conduct is proscribed. 'To be consistent with due process, a penal statute or ordinance must contain ascertainable standards of guilt, so that men of reasonable understanding are not required to guess at the meaning of the enactment.' Seattle v. Drew, 70 Wash.2d 405, 408, 423 P.2d 522, 524 (1967). The basis of this constitutional principle is that '(a)ll are entitled to be informed as to what the State commands or forbids.' Lanzetta v. New Jersey, Supra, 306 U.S. at 453, 59 S.Ct. at 619. The second consideration, obverse to the notice aspect of the void-for-vagueness doctrine, is that vague laws permit arbitrary arrests and convictions. Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the like, 3 Crim.L.Bull. 205, 220--223 (1967). Imprecisely drawn criminal laws offend due process because they leave 'judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.' Giaccio v. Pennsylvania, 382 U.S. 399, 402, 403, 86 S.Ct. 518, 521, 15 L.Ed.2d 447 (1966). It is in view of these considerations that we determine whether or not the Bellevue ordinance is a sufficiently clear and unequivocal statement of what activity is unlawful.

The scope of the ordinance is exceedingly broad, extending generally to any 'wandering or prowling' which manifests an unlawful purpose or which warrants alarm for the safety of persons or property. The terms 'wandering' and 'prowling' standing alone clearly fail to specify adequately what conduct is criminal.

Whether any and all walking is included in 'wandering' is a definitional mystery that subjects a pedestrian to the unbridled discretion of an officer whose standard for law enforcement is equally as nebulous.

State v. Grahovac, 52 Haw. 527, 535, 480 P.2d 148, 153 (1971). 'Prowling' connotes movement which is less innocent than mere wandering but is nevertheless too elastic to satisfy the constitutional requirement of definiteness. Portland v. White, 9 Or.App. 239, 242, 495 P.2d 778 (1972).

The supposed standard of criminality, however, is not mere movement but movement which manifests an unlawful purpose or creates alarm. A determination of whether particular activity manifests an unlawful purpose or creates alarm is entirely dependent upon a police officer's opinion, not only with respect to what conduct the ordinance prohibits, but also with respect to the suspected import of the activity observed. Such extravagant police discretion is plainly improper. As this court observed in Seattle v. Drew, 70 Wash.2d 405, 411, 423 P.2d 522, 525 (1967):

An ordinance that allows a person to stand on a public sidewalk only at the whim of a police officer is unconstitutional. Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965).

Legislation which purports to define illegality by resort to such inherently subjective terms as 'unlawful purpose' or 'alarm' permits, indeed requires, an ad hoc police determination of criminality. Such legislation is vague because there can be no prior notice of what conduct an individual officer will find sufficiently suspicious to warrant arrest. The potential for arbitrary and discriminatory law enforcement under such legislation cannot constitutionally be tolerated. Papachristou v. Jacksonville, Supra, at 170, 92 S.Ct. 839; Amsterdam, Supra at 223.

It is argued, however, that requisite specificity is supplied by the second part of the ordinance which lists three examples of behavior which 'may be considered as manifesting an unlawful purpose or warranting alarm for the safety of persons or property'; (1) flight by a person upon the appearance of a police officer; (2) refusal by a person to identity himself or herself to a police officer; (3) an attempt by a person to conceal himself or herself or any object from a police officer. This section cannot save the ordinance because there are plainly no actual limitations placed on the exercise of police discretion. The section is not intended to be exclusive but merely illustrative. Therefore, the reach of the criminal...

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