City of Spokane v. Douglass
| Decision Date | 23 August 1990 |
| Docket Number | No. 56674-7,56674-7 |
| Citation | 115 Wn.2d 171,795 P.2d 693 |
| Parties | The CITY OF SPOKANE, Petitioner, v. Harlan D. DOUGLASS, Respondent. En Banc |
| Court | Washington Supreme Court |
James C. Sloane, Spokane City Atty., Salvatore J. Faggiano, City Prosecutor, Spokane, for petitioner.
Delay, Curran, Thompson & Pontarolo, P.S., Joseph P. Delay, Spokane, Thompson & Delay, Paul J. Delay, Seattle, for respondent.
Harlan D. Douglass challenges the constitutionality of the City of Spokane's nuisance ordinance, Spokane Municipal Code (SMC) § 10.08.030. In a pretrial motion, Douglass moved to dismiss charges that he violated the ordinance on the theory that SMC § 10.08.030 is unconstitutionally vague. The Spokane County District Court agreed and dismissed the charges. On appeal, the Spokane County Superior Court affirmed. Our review has led us to conclude that the factual record in this case is inadequate to determine whether the municipal ordinance is unconstitutionally vague. Accordingly, the judgment below is reversed and the case remanded for further proceedings consistent with the principles discussed herein.
On October 27, 1987, the City of Spokane filed criminal charges against Douglass alleging eight separate violations of SMC § 10.08.030. Specifically, the City alleged that Douglass violated SMC § 10.08.030(A)(1), (B)(2), (3) and (5). SMC § 10.08.030 provides that:
A. No person may do an act, omit to act, engage in a course of activity, or create or maintain a condition which unreasonably:
1. interferes with the comfort, solitude, health, or safety of others; or
2. offends common decency; or
3. offends common sensibilities and senses by way of extreme noise, light, or odor; or
4. obstructs or renders hazardous for public passage any public way or place; or
5. pollutes or renders less usable any watercourse or water body.
B. No person may maintain upon any land:
1. a refrigerator, freezer, or other insulated container within which a child could suffocate;
2. a pit, excavation, swimming pool, well, or other uncovered hole into which a person could fall;
3. lumber, metal, plastic, paper, cardboard, or other scrap material deposited in such place and manner as to constitute a hazardous attraction to children;
4. unused or junk vehicle or machinery or parts unless enclosed and secured as required by law for wrecking yards, or junk yards; or
5. an abandoned or vacant building, structure or part thereof not securely closed to entry.
C. No person may maintain upon any land:
1. any toxic, radioactive, caustic, explosive, malodorous, or septic substances, such as putrescent animal, fish, or fowl parts, animal or vegetable waste matter, excrement, and any material likely to attract or breed flies or rats, unless kept in proper receptacles as provided by the health and refuse laws;
2. any structure, collection of wood, cloth, paper, plastic, or glass material, vegetation, or flammable substances kept in such manner as to create a substantial risk of combustion or spread of fire.
The factual record underlying the criminal charges is limited to two separate bills of particular, which reveal the following information. The eight charged violations of SMC § 10.08.030 occurred on October 5, 15, 16, 19, and 21, 1987. All of the alleged violations occurred in the City of Spokane; five occurred at 3018 South Regal and three occurred at 2815 East 31st Street.
Spokane Police Department Officer Robert Grandinetti responded to East 2815 31st Street on three separate dates. Each time he observed the house to be open, vacant, and unsecured. On each occasion, Grandinetti entered the house and noted that all of the doors, windows, and plumbing fixtures had been removed and that debris was strewn about the house.
Grandinetti responded to 3018 South Regal on five separate dates regarding complaints that the house was vacant, unsecured, and that large numbers of teenagers were using the house for parties. Each time Grandinetti responded, he observed that the condition of the premises had progressively deteriorated. Specifically, on October 5, 1987, he found the doors to the premises open, the water and electricity on, debris strewn in all parts of the house, and a plugged-in electric blanket in one of the bedrooms. In addition, he observed that a wooden fence in the yard was torn down in sections, exposing an open swimming pool hole.
Ten days later, Grandinetti found all the doors, moldings, and other salvageable items removed from the premises. He observed that almost all of the glass in the house was broken and that the interior of the house had been damaged by means of kicking the plasterboard and spray painting the walls. He also discovered an individual sleeping on a makeshift cot in one of the bedrooms. Grandinetti reported large amounts of spray paint on the walls of the pool area of the back yard as well as other debris inside and outside the house.
On October 16, 1987, Grandinetti found 20 to 25 teenagers at the premises. Some of the teenagers were skateboarding in the empty pool; others were on the side of the pool. Grandinetti again found teenagers at the premises skateboarding in the pool on October 19 and 21, 1987.
On November 23, 1987, Douglass appeared in Spokane County District Court, Spokane Municipal Department. A jury trial was set for April 18, 1988. On March 10, 1988, Douglass moved to dismiss the charges on the theory that SMC § 10.08.030 is unconstitutionally vague. On April 8, 1988, District Court Judge Maggs heard the motion for dismissal. At the hearing on the motion for dismissal, "both parties insist[ed that] the ordinance['s] validity be decided solely on its face."
On May 12, 1988, in a written decision, Judge Maggs declared SMC § 10.08.030 (A) and (B) unconstitutionally vague. Accordingly, Judge Maggs dismissed the criminal charges.
On May 26, 1988, pursuant to RALJ 2.4(c) and RALJ 2.6, the City filed notice of appeal to the Spokane County Superior Court. On April 5, 1989, Judge Clarke affirmed the Spokane County District Court's dismissal and held that the ordinance was void for vagueness under both the fourteenth amendment to the United States Constitution and article 1, section 3 of the Washington State Constitution.
The City sought discretionary review of the Superior Court decision in the Court of Appeals. Pursuant to RAP 2.3(d)(2), the motion was granted on June 16, 1989. On November 16, 1989, pursuant to RCW 2.06.030, the Court of Appeals certified the case to this court. We accepted certification. We are asked to decide if SMC § 10.08.030(A) and (B) abridge the due process clause of the state and federal constitutions.
Whenever a party invokes the protection of the Washington Constitution, we must determine if the asserted right is more broadly protected under the state constitution than it is under federal constitutional law. E.g., Forbes v. Seattle, 113 Wash.2d 929, 934, 785 P.2d 431 (1990). Although Douglass contends that SMC § 10.08.030 is unconstitutionally vague under the due process clause of both the federal and state constitutions, U.S. Const. amend. 14, § 1 and Const. art. 1, § 3, he offers no argument or analysis why Const. art. 1, § 3 is more protective than the federal counterpart. Moreover, Douglass has not addressed the criteria identified in State v. Gunwall, 106 Wash.2d 54, 61-62, 720 P.2d 808, 76 A.L.R.4th 517 (1986), which is a necessary step before this court can determine whether the state constitutional provision affords broader protection than its federal counterpart. State v. Carver, 113 Wash.2d 591, 598-99, 781 P.2d 1308, 789 P.2d 306 (1989). See also Forbes v. Seattle, 113 Wash.2d at 934, 785 P.2d 431; State v. Long, 113 Wash.2d 266, 271, 778 P.2d 1027 (1989); State v. Worrell, 111 Wash.2d 537, 539 n. 1, 761 P.2d 56 (1988); State v. Wethered 110 Wash.2d 466, 472, 755 P.2d 797 (1988). Accordingly, Douglass' due process claim is decided under federal constitutional law.
At issue here is whether SMC § 10.08.030 is unconstitutionally vague under the due process clause of the fourteenth amendment to the United States Constitution. Although we conclude that the trial court erred in dismissing the charges, we remand this case for further proceedings because the factual record is inadequate to determine whether SMC § 10.08.030 is unconstitutionally vague as applied to Douglass.
Our analysis proceeds in three steps. We first discuss the appropriate standard of review for adjudicating vagueness challenges. Second, we review the parameters of the void for vagueness doctrine. Finally, we address the proper analytical format to be employed in reviewing the constitutionality of SMC § 10.08.030.
Municipal ordinances are to be interpreted under the same rules of statutory construction as are state statutes. E.g., Spokane v. Fischer, 110 Wash.2d 541, 542, 754 P.2d 1241 (1988). A duly enacted ordinance is presumed to be constitutional and will be declared unconstitutionally vague only if the ordinance is unconstitutional beyond a reasonable doubt. E.g., Seattle v. Eze, 111 Wash.2d 22, 26, 759 P.2d 366 (1988). The party challenging the ordinance's constitutionality on the theory that the ordinance is unconstitutionally vague has the heavy burden of proving the ordinance's unconstitutionality beyond a reasonable doubt. Eze, at 26, 759 P.2d 366; State v. Aver, 109 Wash.2d 303, 307, 745 P.2d 479 (1987); State v. Maciolek, 101 Wash.2d 259, 264, 676 P.2d 996 (1984). See also Spokane v. Vaux, 83 Wash.2d 126, 129, 516 P.2d 209 (1973); State v. Primeau, 70 Wash.2d 109, 111, 422 P.2d 302 (1966).
The due process clause of the Fourteenth Amendment requires that citizens be afforded fair warning of proscribed conduct. Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975). See also Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972); Colten v. Kentucky, ...
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