City of Seattle v. Eze

Decision Date14 July 1988
Docket NumberNo. 53501-9,53501-9
Citation78 A.L.R.4th 1115,111 Wn.2d 22,759 P.2d 366
CourtWashington Supreme Court
Parties, 78 A.L.R.4th 1115 CITY OF SEATTLE, Respondent, v. John O.J. EZE, Petitioner.

Seattle-King County Public Defender Ass'n, Robert Adelman, Seattle, for petitioner.

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

DURHAM, Justice.

The defendant in this case challenges the constitutionality of Seattle's ordinance prohibiting disorderly conduct on a bus, which includes "loud or raucous behavior" that "unreasonably disturbs others". Seattle Municipal Code (SMC) 12A.12.040(F). We reject these challenges and affirm the defendant's conviction.


John Eze boarded a public bus in Seattle on December 5, 1984, and became involved in an altercation with the driver, Nicholas Coleman. Coleman and Eze differ in their accounts of what transpired.

According to Coleman, Eze boarded the bus without paying the fare or showing a pass. Coleman told Eze to "pay as you enter please". Eze "mumbled something inaudible" and walked "about halfway back in the coach". When Coleman again asked Eze to pay, Eze "went into a tirade", calling Coleman "all kinds of names". Eze walked up to the front of the bus, sat down in the seat right behind Coleman, where he began "gesticulat[ing] and everything". At the same time, another passenger was trying to obtain some information from Coleman. Eze stood up between the passenger and Coleman. Coleman asked Eze "if he would kindly have a seat because he was standing up in the front of the coach and he was jeopardizing the safety of [the] passengers". Eze "kept gesticulating and using threatening gestures", so Coleman told him, "[S]ir, if you don't have a seat I won't be able to operate the coach." Eze "continued to argue." At no point did Eze show him a pass or transfer. Coleman notified his dispatcher of the situation and then stopped the bus to wait for the police to arrive. During the wait, Eze continued to mumble as he had before.

Eze's testimony differed from that of Coleman. He testified that he was from Nigeria and had learned his English there, but that he had spent the last 5 years in Seattle. Eze stated that he did not immediately show the driver his transfer because he was carrying a heavy bag of textbooks. Eze denied that he walked halfway down the bus aisle, testifying instead that he took the seat right behind the driver. When Coleman asked for Eze's fare, Eze asked him to wait "a second" and he would show him the transfer. Coleman immediately "started saying all kinds of obscenities" and "using racial words." Eze showed him his transfer and returned to his seat. Coleman said, "[T]hese foreigners come over here but they don't know how to act." Eze became "very very upset" at this statement. Eze told Coleman to "keep his mouth shut" and to "stop committing a nuisance scene on the bus."

A Seattle Municipal Court judge found Eze guilty of disorderly bus conduct under SMC 12A.12.040(F), which provides 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:

* * *

F. Unreasonably disturbs others by engaging in loud or raucous behavior.

The trial judge found that Eze's behavior was both loud and unreasonable, and, implicitly, that Coleman's testimony was more credible. 1 Eze received a 1-year deferred sentence, on condition that he undergo anger management evaluation, pay a crime victims' compensation fee, and not become involved in additional criminal charges.

Eze appealed to King County Superior Court pursuant to RALJ 2.3, where the conviction was reversed on the basis that the ordinance was void for vagueness. The City of Seattle appealed to the Court of Appeals, which upheld the ordinance's constitutionality and reinstated the judgment of the municipal court. Seattle v. Eze, 45 Wash.App. 744, 727 P.2d 262 (1986).

This court granted Eze's petition for discretionary review. He challenges the constitutionality of SMC 12A.12.040(F) with three arguments. He contends that the ordinance is both vague and overbroad, and that it conflicts with a state statute.


An ordinance or statute is "void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application." O'Day v. King Cy., 109 Wash.2d 796, 810, 749 P.2d 142 (1988). The vagueness doctrine serves two important purposes: to provide fair notice to citizens as to what conduct is proscribed and to protect against arbitrary enforcement of the laws. State v. Richmond, 102 Wash.2d 242, 243-44, 683 P.2d 1093 (1984); State v. Hilt, 99 Wash.2d 452, 453-54, 662 P.2d 52 (1983).

Despite the broad sweep of the standard stated above, the vagueness doctrine is limited in two significant ways. First, a statute is presumed to be constitutional unless its unconstitutionality appears beyond a reasonable doubt. State v. Aver, 109 Wash.2d 303, 306-07, 745 P.2d 479 (1987); Seattle v. Shepherd, 93 Wash.2d 861, 865, 613 P.2d 1158 (1980). The burden of proving a statute's vagueness rests with the party challenging its constitutionality. Aver, 109 Wash.2d at 307, 745 P.2d 479.

Second, impossible standards of specificity are not required. Kolender v. Lawson, 461 U.S. 352, 361, 103 S.Ct. 1855, 1860, 75 903 (1983); Aver, 109 Wash.2d at 307, 745 P.2d 479; Hi-Starr, Inc. v. Liquor Control Bd., 106 Wash.2d 455, 465, 722 P.2d 808 (1986). "Condemned to the use of words, we can never expect mathematical certainty from our language." Grayned v. Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972). Consequently, a statute is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his actions would be classified as prohibited conduct. As this court has previously stated, "[I]f men of ordinary intelligence can understand a penal statute, notwithstanding some possible areas of disagreement, it is not wanting in certainty." (Italics ours.) State v. Maciolek, 101 Wash.2d 259, 265, 676 P.2d 996 (1984) (quoting Spokane v. Vaux, 83 Wash.2d 126, 129, 516 P.2d 209 (1973)). See also United States v. Powell, 423 U.S. 87, 93, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 (1975) (quoting Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232 (1913) (" '[T]he law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.' ").)

These general limitations are necessary to any analysis of statutory language under the vagueness doctrine. They reflect our deference to the Legislature's constitutional lawmaking role, as well as our recognition of the difficulties that attend legislating in areas such as disorderly conduct, where the terms are difficult to define. See Smith v. Goguen, 415 U.S. 566, 581, 94 S.Ct. 1242, 1251, 39 L.Ed.2d 605 (1974). Moreover, as we have noted elsewhere, our rulings in vagueness cases have themselves tended to be conclusory and vague, failing to provide any "cogent reasoning that is properly generalizable to later applications." State v. Smith, 111 Wash.2d 1, 12, 759 P.2d 372 (1988). We should not demand from the Legislature a higher degree of definition and certainty in its official pronouncements than we are capable of producing in our own, lest we appear to be usurping the properly legislative power of defining criminal elements. See State v. Smith, 759 P.2d 378. Therefore, the presumption in favor of a law's constitutionality should be overcome only in exceptional cases.

We now apply these standards to the case at hand. The term "loud or raucous" is not inherently vague. We find persuasive the Supreme Court's analysis of this term:

The contention that the section is so vague, obscure and indefinite as to be unenforceable merits only a passing reference. This objection centers around the use of the words "loud and raucous". While these are abstract words, they have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden.

Kovacs v. Cooper, 336 U.S. 77, 79, 69 S.Ct. 448, 449, 93 L.Ed. 513 (1949). See also Normal v. Stelzel, 109 Ill.App.3d 836, 65 Ill.Dec. 378, 441 N.E.2d 170 (1982) (loud and raucous noise); State v. Johnson, 112 Ariz. 383, 542 P.2d 808 (1975) (loud or unusual noise); Hess v. State, 260 Ind. 427, 297 N.E.2d 413, rev'd on other grounds, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973) (acting in a loud, boisterous, or disorderly manner, causing a loud or unusual noise); People v. Fitzgerald, 194 Colo. 415, 573 P.2d 100 (1978) (unreasonable noise) (and cases cited therein).

Moreover, precedents from both the Supreme Court and this state's Court of Appeals indicate that an ordinance is not impermissibly vague if it uses the phrase "unreasonably disturbs others". The Supreme Court has held that in a disorderly conduct ordinance similar to the present one, use of the term "disturb" does not render a statute impermissibly vague. In Grayned v. Rockford, supra, the Court had before it an ordinance that criminalized "the making of any noise or diversion which disturbs or tends to disturb the peace or good order" of school sessions. Grayned, 408 U.S. at 107-08, 92 S.Ct. at 2298-99. In addressing the sufficiency of the term "disturb", the Court stated:

Although the prohibited quantum of disturbance is not specified in the ordinance, it is apparent from the statute's announced purpose that the measure is whether normal school activity has been or is about to be disrupted. We do not have here a vague, general "breach of the peace" ordinance, but a statute written specifically for the school context, where the prohibited disturbances are easily measured by their impact on the normal activities of the school. Given this "particular...

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