City of Seattle v. Eze

• Decision Date: 27 October 1986
• Docket Number: No. 16985-8-I,16985-8-I
• Citation: 45 Wn.App. 744,727 P.2d 262
• Court: Washington Court of Appeals
• Parties: CITY OF SEATTLE, Petitioner, v. John O.J. EZE, Respondent.

Page 744

45 Wn.App. 744

727 P.2d 262

CITY OF SEATTLE, Petitioner, v. John O.J. EZE, Respondent.

No. 16985-8-I.

Court of Appeals of Washington,

Division 1.

Oct. 27, 1986.

Reconsideration Denied Dec. 16, 1986.

Douglas N. Jewett, City Atty., and Betty Ngan, Asst. City Atty., Seattle, for City of Seattle.

Marilyn Young-Skoglund, Public Defender, and Robert Adelman, Deputy Public Defender, Seattle, for John O.J. Eze.

GROSSE, Judge.

The City of Seattle appeals a superior court order declaring a Seattle Municipal Code provision governing disorderly conduct on buses to be unconstitutionally vague.

In pertinent part, the ordinance in question reads as follows:

A person is guilty of disorderly bus conduct if while on or in a transit coach of the METRO Transit System, and with knowledge that such conduct is prohibited, he or she:

* * *

(6) Unreasonably disturbs others by engaging in loud or raucous behavior.

Seattle Municipal Code 12A.12.040, currently codified as 12A.12.040(F).

The respondent transferred from one Metro bus to another. When he boarded the bus he and the driver immediately developed a misunderstanding as to whether he had shown the driver his transfer. The driver testified that the respondent did not present the transfer at the time he boarded or thereafter; respondent testified that he had his hands full of textbooks and asked for a moment to set them down to present the transfer to the driver. The driver testified that respondent went into a tirade, calling the driver all kinds of names; that he sat down in the seat behind the driver's seat, continuing his tirade with gesticulations; that he then stood up between the driver and another passenger who was attempting to converse with the driver. At this point the bus driver testified that he informed respondent to have a seat because he was "standing up in the front of the coach and he was jeopardizing the safety of my passengers and he kept gesticulating and using threatening gestures toward me and standing over me so I finally told him, I said, sir, if you don't have a seat I won't be able to operate the coach." According to the driver, respondent continued to stand, continued to argue and went so far as to tell the driver he would "kick his butt." However, at no point did the driver testify that respondent's voice was loud in volume. Indeed, the gist of his testimony is that much of what respondent said to him was unintelligible.

The respondent's version of the incident is quite different. The respondent, who is from Nigeria and learned to speak English there, testified that when he boarded the bus he was unable to immediately show the driver his transfer because he was carrying three large textbooks that interfered with his ability to withdraw the transfer from his jacket pocket. The respondent states that when the driver asked him for his fare he asked the driver to wait a second so that he could show it to him, intending to put down his books and return to present the transfer. Respondent's testimony confirms that at this point the situation degenerated into a conflict. However, it is respondent's contention that it was the driver who immediately began the conflict by using obscenities and "racial words" making very rude statements that were antagonizing to him and "very racist." Respondent contends that even after he showed the driver his transfer the driver kept on with his insults. Respondent claims that he did not threaten the driver but rather "told him to quietly drive the bus and stop committing a nuisance scene on the bus."

The bus driver testified that upon respondent's refusal to sit down he contacted Metro dispatch by radio and requested instructions. He was instructed to stop the coach and await the arrival of police officers, which he did. The police officers testified that when they arrived they requested the respondent to leave the bus and that when he refused after three requests they removed him forcibly. The officers further testified that the respondent resisted his removal by grabbing at objects in the bus. Outside the bus, after a further altercation ensued, respondent had to be handcuffed and forced into the patrol car. While respondent was initially charged with both disorderly conduct under Seattle Municipal Code 12A.12.040(6) and with attempting to prevent a peace officer from making a lawful arrest pursuant to Seattle Municipal Code 12A.16.050, he was convicted only on the disorderly conduct charge.

The trial court found the respondent guilty, holding his conduct unreasonable because it interfered with the other passengers on the bus and because it diverted the attention of the driver from the safe operation thereof.

In municipal court, the superior court, and now this court, the respondent has contended that the ordinance is vague, that it fails to give notice of illegal conduct, and that it fails to set forth ascertainable standards for enforcement. While the ruling of the superior court voided the statute for vagueness, and the City of Seattle assigned error only to that void for vagueness ruling, both the City and the respondent in their respective briefs address the question of the potential overbreadth of the statute as it pertains to constitutionally protected rights of free expression. We will discuss both doctrines.

We hold that the statute is not unconstitutionally vague on its face; that even if so, the respondent's conduct falls within the hard core of the statute's proscriptions; and that properly construed the statute is not overbroad on its face nor overbroad as applied to the respondent's conduct.

The scope and comparison of the doctrines of vagueness and overbreadth as applied to statutes which potentially encompass constitutionally protected rights of free expression has been widely discussed. Nevertheless, there exists confusion between the doctrines and the criteria to be considered in applying the doctrines. This confusion results primarily from the fact that the vagueness doctrine does encompass concerns with overbreadth when applied in the First Amendment context. Justice Douglas's dissent in Karlan v. Cincinnati, 416 U.S. 924, 94 S.Ct. 1922, 40 L.Ed.2d 280 (1974), is illustrative:

The "void for vagueness" doctrine is, of course, a due process concept implementing principles of fair warning and nondiscriminatory enforcement. Vague laws may trap those who desire to be law abiding by not providing fair notice of what is prohibited. Papachristou v. City of Jacksonville, 405 U.S. 156, 162 [92 S.Ct. 839, 843, 31 L.Ed.2d 110] (1972); United States v. Harriss, 347 U.S. 612, 617 [74 S.Ct. 808, 98 L.Ed. 989] (1954). They also provide opportunity for arbitrary and discriminatory enforcement since those who apply the laws have no clear and explicit standards to guide them. Coates v. City of Cincinnati, 402 U.S. 611, 614 [91 S.Ct. 1686, 1688, 29 L.Ed.2d 214] (1971); Shuttlesworth v. Birmingham, 382 U.S. 87, 90-91 [86 S.Ct. 211, 213, 15 L.Ed.2d 176] (1965). Further, when a vague statute " 'abut[s] upon sensitive areas of First Amendment freedoms,' it 'operates to inhibit the exercise of [those] freedoms.' Uncertain meanings inevitably lead citizens to 'steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked.' " Grayned v. City of Rockford, 408 U.S. 104, 109 [92 S.Ct. 2294, 2299, 33 L.Ed. 222] (1972), quoting Baggett v. Bullitt, 377 U.S. 360, 372 [84 S.Ct. 1316, 1322, 12 L.Ed.2d 377] (1964), and Speiser v. Randall, 357 U.S. 513, 526 [78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460] (1958).

Overbreadth, on the other hand, "offends the constitutional principle that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' " Zwickler v. Koota, 389 U.S. 241, 250 [88 S.Ct. 391, 396, 19 L.Ed.2d 444] (1967), quoting NAACP v. Alabama, 377 U.S. 288, 307 [84 S.Ct. 1302, 1313, 12 L.Ed. 325] (1964). A vague statute may be overbroad if its uncertain boundaries leave open the possibility of punishment for protected conduct and thus lead citizens to avoid such protected activity in order to steer clear of the uncertain proscriptions. Grayned v. City of Rockford, supra, at 109 ; Dombrowski v. Pfister, 380 U.S. 479, 486 [85 S.Ct. 1116, 1120, 14 L.Ed.2d 22] (1965). A statute is also overbroad, however, if, even though it is clear and precise, it prohibits constitutionally protected conduct. Aptheker v. Secretary of State, 378 U.S. 500, 508-509 [84 S.Ct. 1659, 1664-1665, 12 L.Ed.2d 992] (1964); Shelton v. Tucker, 364 U.S. 479, 488 [81 S.Ct. 247, 252, 5 L.Ed.2d 231] (1960).

Karlan, at 924-25, 94 S.Ct. at 1923. See also Hontz v. State, 105 Wash.2d 302, 308, 714 P.2d 1176 (1986). Thus, in the First Amendment context the vagueness inquiry involves three aspects: the requirement of fair notice, the avoidance of arbitrary or discriminatory enforcement, and the concern that the free exercise of protected freedoms not be inadvertently inhibited.

Apart from First Amendment implications, the ordinance is not unconstitutionally vague. In Everett v. O'Brien, 31 Wash.App. 319, 641 P.2d 714 (1982), this court held that an Everett ordinance which prohibited noise which " 'unreasonably disturb[ed] or interfere[d] with the peace, comfort and repose of owners or possessors of real property' " gave adequate description of the proscribed conduct such that a person of ordinary understanding would be capable of determining when a noise fell within that proscription. Everett v. O'Brien, supra, at 323, 641 P.2d 714. Loud and raucous behavior that unreasonably disturbs others as proscribed by the Seattle ordinance is more specific than the mere prohibition of noise that was the subject of Everett v. O'Brien, supra.

Webster's New Third International Dictionary 1339 (1981) defines loud as "marked by intensity or volume of sound ......