City of Mountlake Terrace v. Stone

• Citation: 492 P.2d 226,6 Wn.App. 161
• Decision Date: 20 December 1971
• Docket Number: No. 977--I,977--I
• Parties: CITY OF MOUNTLAKE TERRACE, Respondent, v. Luther E. STONE, Appellant.
• Court: Court of Appeals of Washington

Page 161

6 Wn.App. 161

492 P.2d 226

CITY OF MOUNTLAKE TERRACE, Respondent, v. Luther E. STONE, Appellant.

No. 977--I.

Court of Appeals of Washington, Division 1, Panel One.

Dec. 20, 1971.

Houger, Garvey & Schubert, M. John Bundy, with American Civil Liberties Union, Seattle, for appellant; Michael Rosen, Seattle, of counsel.

Adair, Kasperson, Hennessey & Bowden, William F. Hennessey, Seattle, for respondent.

HOROWITZ, Chief Judge.

Defendant was convicted by the Mountlake Terrace Municipal Court of violating a city ordinance. He was fined $50, suspended. He appealed to the superior court below and the conviction was affirmed.

City of Mountlake Terrace Ordinance No. 405, italicized to the extent here involved, provides:

Every person who, after due notice, shall refuse or neglect to make or furnish a statement, report or information lawfully required of him by any public officer, or who, in such statement, report or information shall make any willfully untrue, misleading or exaggerated statement, or who shall willfully hinder, delay or obstruct any public officer in the discharge of his official powers or duties, Shall be guilty of a misdemeanor.

On the morning of March 20, 1970, at approximately 5:40 a.m., the defendant was walking northbound on 60th West at 227th in the city of Mountlake Terrace, Washington. It was the defendant's custom to jog in the morning, but on this particular morning he was walking, due to the fact that he was suffering from a cold. He had walked approximately 2 1/2 miles prior to his contract with the Mountlake Terrace police, which occurred at approximately 5:40 a.m., a short distance from his home.

The area in which the defendant was walking was a residential district. He was walking along the side of the road near some heavy construction equipment concerning which the Mountlake Terrace police had received complaints of vandalism and burglary.

Officer Dahlquist of the Mountlake Terrace police force, in police uniform, was by himself in a police car when he observed the defendant walking along the road in the area described at a pace between a walk and a run, breathing heavily and perspiring. The defendant was wearing dark clothing and in his hand was carrying what Officer Dahlquist described to be a 'Russian type hat.' Officer Dahlquist approached from the defendant's rear in the police car and pulled alongside where the defendant was walking. The men exchanged greetings by saying 'good morning,' and the defendant continued to walk and Officer Dahlquist continued to drive alongside.

The officer began asking the defendant to identify himself and to explain his presence at that particular time and place. In addition, the officer directed that the defendant should produce identification of himself. The defendant asked whether his responses would be required or voluntary. When the officer replied that the defendant was required to produce identification and to answer questions, the defendant stated that he would decline to do so on the ground that he did not believe the officer had the right to require the defendant to verbally respond or to produce identification.

A debate over these matters between the defendant and the officer continued as defendant walked and the officer drove his car alongside. A short time later, defendant had come to his home, walked across the street in back of the police car, and into his house.

Officer Dahlquist thereupon summoned a second uniformed officer and both of them went to defendant's door and knocked. Defendant answered the door and the three men continued the argument concerning whether the defendant was to answer questions or to produce identification. Defendant demanded that one of the officers identify himself and the latter did so by producing his badge and commission card. Defendant still did not answer, however. He was thereupon arrested, transported to the police station where he did identify himself and his residence, but he was charged with violation of the ordinance above described and convicted.

Defendant contends the ordinance is constitutionally invalid under the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. We hold the portion of the ordinance here involved to be violative of the Fourteenth Amendment and therefore find it unnecessary to consider whether the ordinance is also violative of the other amendments relied on.

The basic question here raised by the Fourteenth Amendment, binding on the state, is whether the ordinance is framed 'in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . .' Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Palmer v. City of Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971); Seattle v. Drew, 70 Wash.2d 405, 423 P.2d 522, 25 A.L.R.3d 827 (1967); 50 Am.Jur., Statutes §§ 472--475 (1944, Supp. 1971); 22 C.J.S. Criminal Law § 24(2) (1961, Supp.1971). As stated in Seattle v. Drew, Supra:

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. Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). A law that fails to give fair notice of what acts will be punished is violative of due process. Ibid. It is fundamental that no ordinance may unreasonably or unnecessarily interfere with a person's freedom, whether it be to move about or to stand still. The right to be let alone is inviolate; interference with that right is to be tolerated only if it is necessary to protect the rights and the welfare of others. State v. Caez, 81 N.J.Super. 315, 195 A.2d 496 (1963); Territory of Hawaii v. Anduha, 48 F.2d 171 (9th Cir. 1931); St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30 (1908); Pinkerton v. Verberg, 78 Mich, 573, 44 N.W. 579 (1889).

An ordinance that restricts such freedom must contain standards that are reasonable and that do not permit arbitrary enforcement. If an ordinance imposes sanctions authorized by language that is doubtful, vague, or uncertain, it violates fundamental concepts of justice and due process of law. State v. Caez, Supra.

70 Wash.2d at 408, 423 P.2d at 524. We have found no statute in this state, other than RCW 9.69.060 copied by the ordinance, nor indeed any statute in any other state, so broad, general and all-inclusive as is this ordinance; nor have we found any decision passing on the basic question here involved in relation to such a statute or ordinance.

The answer to the basic question presented depends upon whether the phrases 'after due notice' and 'lawfully required of him by any public officer' can be said to give the interrogatee fair warning that the answer asked is one the police officer may require. The question is especially pertinent because of the absence in the part of the ordinance here involved of a requirement of willfulness or bad faith in the failure or neglect to answer. Cf., RCW 9.69.030--.040. See American Communications Ass'n, C.I.O. v. Douds,339 U.S. 382, 412--413, 70 S.Ct. 674, 94 L.Ed. 925 (1950), rehearing denied,339 U.S. 990, 94 L.Ed. 1391, 70 S.Ct. 1017. The void for vagueness doctrine does not require total clarity and precision. It is enough if the statute or ordinance is reasonably clear to persons of ordinary intelligence. State v. Missmer, 72 Wash.2d 1022, 435 P.2d 638 (1967), cert. denied, 393 U.S. 885, 89 S.Ct. 197, 21 L.Ed.2d 162.

We assume, as do the parties, that the term 'public officer' contained in the ordinance is broad enough to include a police officer. This construction of the term is one adopted under other statutes in this state. State v. Austin, 65 Wash.2d 916, 400 P.2d 603 (1965); State v. Cooney,23 Wash.2d 539, 161 P.2d 442 (1945); State v. Worsham, 154 Wash. 575, 283 P. 167 (1929); Hamblet v. Mutual Union Ins. Co., 120 Wash. 31, 206 P. 836 (1922). See Hayes v. City of Dalton, 209 Ga. 286, 71 S.E.2d 618 (1952); State ex rel. Knez v. Seattle, 176 Wash. 283, 28 P.2d 1020; 33 P.2d 905 (1934); Benefiel v. Eagle Brass Foundry, 154 Wash. 330, 282 P. 213 (1929).

We assume also that the term 'due notice' is not unconstitutionally vague. Merriam-Webster Third Int'l Dictionary (1969) defines the word 'due' as 'requisite or appropriate in accordance with accepted notions of what is right, reasonable, fitting, or necessary.' In the context used 'due notice' conveys the meaning of prior notice sufficient to make known the public officer's demand, neither too short nor too long prior to demand, hence reasonable under the circumstances. This meaning may not be mathematically precise, but the concept of reasonableness in varying contexts has been so often applied, as in negligence cases for example, that it may be doubted if, with respect to due notice, 'men of common intelligence must necessarily guess at its meaning and differ as to its application.' Connally v. General Constr. Co., Supra. See Annot., 6 A.L.R.3d 1326 § 11 (1966). If the words involved are sufficient in civil cases, they seem to us no less sufficient in the present ordinance which provides for a criminal rather than a civil sanction.

A more difficult question is presented as to the constitutional validity of the phrase 'lawfully required of him by any public officer.' Preliminarily, it must be determined whether the phrase 'lawfully required' means lawfully required only by statute. The similar but distinguishable phrase 'required by law' contained in many statutes is ordinarily construed to mean required by statutory law. Unless the context otherwise requires, such construction seems to best carry out legislative intent. People v. Knapp,147 App.Div. 436, 132 N.Y.S. 747, 750 (1911); Brinckerhoff v. Bostwick, 99 N.Y. 185, 1 N.E. 663, 665 (1885); City of...