City of Everett v. Moore, No. 12982-1-I

• Court: Court of Appeals of Washington
• Writing for the Court: WARD WILLIAMS
• Citation: 37 Wn.App. 862,683 P.2d 617
• Decision Date: 18 June 1984
• Docket Number: No. 12982-1-I
• Parties: CITY OF EVERETT, Respondent, v. Douglas MOORE, Petitioner.

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37 Wn.App. 862 683 P.2d 617 CITY OF EVERETT, Respondent,
v.
Douglas MOORE, Petitioner. No. 12982-1-I. Court of Appeals of Washington,
Division 1. June 18, 1984.

Washington Appellate Defender Raymond H. Thoenig (Court appointed), Eric J. Nielsen, Seattle, for petitioner.

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Michael E. Weight, Asst. City Atty., City of Everett, Everett, for respondent.

American Civil Liberties Union, G. Richard Hill, Seattle, for amicus curiae.

WARD WILLIAMS, Judge.

Douglas Moore was charged in Everett District Court with harassment, in violation of Everett Municipal Code § 10.24.060. After[683 P.2d 618] trial to the court, sitting without a jury, he was found guilty and appealed to the Snohomish County Superior Court which affirmed but remanded the cause for resentencing. This court granted discretionary review.

Moore was formerly married to Jeanna Ruuth, resulting in a daughter, Shannon. After they were divorced, Jeanna married Evan Ruuth with Shannon living in that household. Between December 12 and 24, 1981, Moore made several threatening telephone calls to the Ruuths and on the 24th, Christmas Eve, called again, demanding to see his daughter. When Ruuth refused, Moore stated that he would see his daughter "no matter what anybody says," greatly upsetting Ruuth.

Moore was charged with and found guilty of harassment, defined as follows:

A person commits the crime of harassment, if, with intent to harass, annoy or alarm another person, he: ... (3) communicates with a person, anonymously or otherwise, by telephone, mail or other form of written communication, in a manner likely to cause annoyance or alarm; or (4) engages in a course of conduct that alarms or seriously annoys another person and which serves no legitimate purpose.

EMC § 10.24.060(A). He challenges these subsections as being unconstitutionally vague or overbroad.

There is a recognized difference between "vagueness" and "overbreadth":

"Vagueness" goes to the question of procedural due process, i.e., whether a statute provides fair notice, measured by common practice and understanding, of that conduct

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which is prohibited and whether there are proper standards for adjudication. Grayned v. Rockford, [408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972) ]; State v. J-R Distribs., Inc., 82 Wn.2d 584, 600, 512 P.2d 1049 (1973); State v. Oyen, 78 Wn.2d 909, 480 P.2d 766 (1971), judgment vacated and case remanded on other grounds, 408 U.S. 933 [92 S.Ct. 2846, 33 L.Ed.2d 745] (1972). Impossible standards of specificity are not required. On the other hand "overbreadth" goes to the question of substantive due process, i.e., whether the statute in question is so broad that it may not only prohibit unprotected behavior but may also prohibit constitutionally protected activity as well.

Blondheim v. State, 84 Wash.2d 874, 878, 529 P.2d 1096 (1975).

Webster's Third New International Dictionary, at 48-49, defines "annoyance" as:

the act of annoying or of being annoyed ... the state or feeling of being annoyed: VEXATION, IRRITATION ... a source of vexation or irritation: bothersome disturbance: NUISANCE ....

and "alarm" is defined, at Webster's, supra at 87-88, as:

to rouse to action: urge on ... to call to arms ... to arouse to a sense of danger: put on the alert ... to strike with fear: fill with anxiety as to threatening danger or harm ... to keep in excitement or commotion: DISTURB ....

The ordinance proscribes communication by telephone or in writing or a course of conduct causing annoyance or alarm. It is apparent that the ordinance can be applied to constitutionally protected speech. See Lewis v. City of New Orleans, 415 U.S. 130, 134, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974). A discussion of any political, social, economic, philosophic or religious topic might well vex, irritate or bother the listener. In addition, the public is constantly being put on the alert about the disastrous effects of everything from vitamin deficiencies in the blood to nuclear obliteration. In all of these instances, the intent may well be to either alarm or annoy to get peoples' attention. And such alarms are often legitimate;...