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

CourtCourt of Appeals of Washington
Writing for the CourtWARD WILLIAMS
Citation37 Wn.App. 862,683 P.2d 617
Decision Date18 June 1984
Docket NumberNo. 12982-1-I
PartiesCITY OF EVERETT, Respondent, v. Douglas MOORE, Petitioner.

Page 862

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.

Page 863

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

Page 864

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;...

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29 practice notes
  • State v. Alphonse, No. 58449-9-I.
    • United States
    • Court of Appeals of Washington
    • January 7, 2008
    ...140 P.3d 614. 14. State v. Alexander, 76 Wash.App. 830, 837-38, 888 P.2d 175 (quoting City of Everett v. Moore, 37 Wash.App. 862, 865, 683 P.2d 617 (1984)), review denied, 127 Wash.2d 1001, 898 P.2d 307 15. Id. 16. Id. at 838, 888 P.2d 175. 17. Burkhart, 99 Wash.App. at 26, 991 P.2d 717. 18......
  • State v. Kipf, No. 88-974
    • United States
    • Supreme Court of Nebraska
    • January 19, 1990
    ...in Page 408 anything but a state of languid repose." Id. Bolles v. People, supra, was followed in Everett v. Moore, 37 Wash.App. 862, 683 P.2d 617 (1984), wherein the court held that a city ordinance identical to the statute in Bolles encroached on constitutionally protected speech. The cou......
  • State v. Thorne, No. 16465
    • United States
    • Supreme Court of West Virginia
    • August 7, 1985
    ...269, 275, 5 Ill.Dec. 858, 860-61, 362 N.E.2d 329, 331-32 (1977) ("intent to annoy" overbroad); City of Everett v. Moore, 37 Wash.App. 862, 683 P.2d 617, 618-20 (1984) ("alarms or seriously annoys" overbroad); State v. Dronso, 90 Wis.2d 110, 114-16, 279 N.W.2d 710, 713-14 (1979) ("intent to ......
  • Galloway v. State, No. 21
    • United States
    • Court of Appeals of Maryland
    • September 19, 2001
    ...to define what annoys and alarms people, ... causes it to be unconstitutionally vague"); City of Everett v. Moore, 37 Wash.App. 862, 866, 683 P.2d 617, 619 (1984) (In holding that provisions of an harassment statute are invalid under Coates v. Cincinnati and similar cases, the court stated ......
  • Request a trial to view additional results
29 cases
  • State v. Alphonse, No. 58449-9-I.
    • United States
    • Court of Appeals of Washington
    • January 7, 2008
    ...140 P.3d 614. 14. State v. Alexander, 76 Wash.App. 830, 837-38, 888 P.2d 175 (quoting City of Everett v. Moore, 37 Wash.App. 862, 865, 683 P.2d 617 (1984)), review denied, 127 Wash.2d 1001, 898 P.2d 307 15. Id. 16. Id. at 838, 888 P.2d 175. 17. Burkhart, 99 Wash.App. at 26, 991 P.2d 717. 18......
  • State v. Kipf, No. 88-974
    • United States
    • Supreme Court of Nebraska
    • January 19, 1990
    ...in Page 408 anything but a state of languid repose." Id. Bolles v. People, supra, was followed in Everett v. Moore, 37 Wash.App. 862, 683 P.2d 617 (1984), wherein the court held that a city ordinance identical to the statute in Bolles encroached on constitutionally protected speech. The cou......
  • State v. Thorne, No. 16465
    • United States
    • Supreme Court of West Virginia
    • August 7, 1985
    ...269, 275, 5 Ill.Dec. 858, 860-61, 362 N.E.2d 329, 331-32 (1977) ("intent to annoy" overbroad); City of Everett v. Moore, 37 Wash.App. 862, 683 P.2d 617, 618-20 (1984) ("alarms or seriously annoys" overbroad); State v. Dronso, 90 Wis.2d 110, 114-16, 279 N.W.2d 710, 713-14 (1979) ("intent to ......
  • Galloway v. State, No. 21
    • United States
    • Court of Appeals of Maryland
    • September 19, 2001
    ...to define what annoys and alarms people, ... causes it to be unconstitutionally vague"); City of Everett v. Moore, 37 Wash.App. 862, 866, 683 P.2d 617, 619 (1984) (In holding that provisions of an harassment statute are invalid under Coates v. Cincinnati and similar cases, the court stated ......
  • Request a trial to view additional results

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