City of Las Vegas v. Dist. Ct., 38582.

Citation59 P.3d 477,118 Nev. 859
Decision Date20 December 2002
Docket NumberNo. 38582.,38582.
PartiesCITY OF LAS VEGAS, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF CLARK, and the Honorable Jeffrey D. Sobel, District Judge, Respondents, and James Edward Charles, Real Party in Interest.
CourtSupreme Court of Nevada

Bradford R. Jerbic, City Attorney, and Cynthia S. Leung, Deputy City Attorney, Las Vegas, for Petitioner.

Marcus D. Cooper, Public Defender, and Jennifer L. Rusley, Deputy Public Defender, Clark County, for Real Party in Interest.

Before the Court En Banc.



The City of Las Vegas seeks an extraordinary writ directing the district court to vacate its order holding that NRS 207.260 is unconstitutional. At the time relevant to this petition, NRS 207.260 provided in part that "a person who annoys or molests a minor is guilty of a misdemeanor."1 For the reasons stated below, we conclude that the district court did not err in holding that the statute was facially void and unconstitutional. Therefore, we deny the City's petition.

On September 13, 2000, the City filed a criminal complaint charging real party in interest James Edward Charles with one count of annoying a minor pursuant to NRS 207.260. The complaint alleged that Charles "willfully and unlawfully annoy[ed] a minor... by following [her] from her residence to another residence, thereafter asking for her ten to fifteen times."

At a pretrial hearing, counsel for Charles challenged the constitutionality of NRS 207.260. The district court subsequently ruled that NRS 207.260 was unconstitutionally vague because "people of common intelligence must necessarily guess" as to the conduct it proscribes. The City then petitioned this court for extraordinary relief, arguing that the district court erred in ruling that NRS 207.260 was facially void for vagueness. Pursuant to this court's order, Charles has filed an answer to the City's petition. This matter is now fully at issue and ready for decision.

The instant petition presents this court with an important, unsettled issue regarding the constitutionality of a criminal statute. In reviewing this issue, two different district courts have reached contrary conclusions.2 This court will exercise its discretion to entertain a petition for extraordinary relief in order to resolve a split of authority among lower courts.3 Accordingly, we have elected to review the merits of the instant petition.4

The City first argues that the district court erred in considering the facial vagueness of the statutory language without first applying it to Charles' conduct. We disagree.

Recently, in Chicago v. Morales,5 a plurality of the United States Supreme Court recognized that imprecise criminal laws are subject to facial attack under two different doctrines.

First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests.6

In Kolender v. Lawson, the Supreme Court also observed:

As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.7

We view the underlying reasoning of Kolender and the Morales plurality to be sound, and we now conclude that where a particular statute is so imprecise that "vagueness permeates the text of such a law, it is subject to facial attack," if the statute both: (1) fails to provide notice sufficient to enable ordinary people to understand what conduct is prohibited; and (2) authorizes or encourages arbitrary and discriminatory enforcement.8

The City argues, however, that under this court's case law, a statute that is challenged as void for vagueness must be evaluated on an as-applied basis unless First Amendment concerns are implicated. The City correctly observes that this court has reiterated this rule in numerous decisions, including Sheriff v. Anderson,9 Lyons v. State,10 and Smith v. State.11 On the other hand, conflicting Nevada case law suggests that this court will consider whether an enactment is facially void for vagueness, even if no First Amendment interests are implicated, when the challenged statute is so vague that it fails to give persons of ordinary intelligence fair notice of what conduct is permitted or forbidden. For example, in Cunningham v. State, this court upheld a facial vagueness challenge to a statute under the Due Process Clause of the Nevada Constitution as appropriate, where the challenged statute prohibited "the doing of an act in terms so vague that people of common intelligence [were required to] necessarily guess as to its meaning" and where the statute was "so vague that it [did] not provide a constitutional basis for criminal prosecution."12 This court has also found certain county and city ordinances to be facially void under the void for vagueness doctrine even though the cases disclosed no readily apparent or clearly implicated First Amendment concerns.13

In light of our conflicting precedent in this regard, we now clarify that a facial vagueness challenge is appropriate, even where no substantial First Amendment concerns are implicated, if the penal statute is so imprecise, and vagueness so permeates its text, that persons of ordinary intelligence cannot understand what conduct is prohibited, and the enactment authorizes or encourages arbitrary and discriminatory enforcement. To the extent that Lyons, Anderson, Smith, and other decisions of this court indicate that a facial vagueness challenge may only be appropriate where First Amendment concerns are implicated, they are hereby modified.14

Therefore, we reject the City's claim that the district court erred in analyzing the facial validity of the statute, rather than considering the constitutionality of the statute in light of Charles' specific conduct. Further, we agree with the district court that former NRS 207.260 was facially invalid. In our view, the statute: (1) failed to provide the citizens of our state with fair notice of the prohibited conduct; and (2) authorized and encouraged arbitrary enforcement.15

The Due Process Clauses of the United States and Nevada Constitutions16 guarantee that every citizen shall receive fair notice of conduct that is forbidden.17 The fair notice requirement ensures that citizens will not have to speculate about the meaning of a particular law, and will therefore have the ability to conform their conduct to that law.18 Although mathematical precision is not possible in drafting statutory language, the law must, at a minimum, delineate the boundaries of unlawful conduct.19 Some specific conduct must be deemed unlawful so individuals will know what is permissible behavior and what is not.20

In the instant case, when Charles was charged in September 2000, NRS 207.260 provided:

A person who annoys or molests a minor is guilty of a misdemeanor. For the second and each subsequent offense he is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000.21

Notably, the criminal complaint in this case merely charged that Charles had willfully and unlawfully "annoyed" a minor; it did not allege that Charles had "molested" a minor. Thus, the State apparently read the statute to prohibit either the annoying or molesting of a minor.

The language of the statute does not specify what type of annoying behavior is prohibited, nor does it define the term "molest." By its terms, the statute is not limited only to annoyances of a sexual nature, and it provides no indication of whether the perpetrator must subjectively intend to annoy the minor, or if mere unintentional, bothersome conduct, in and of itself, is sufficient to subject an individual to criminal sanctions.

The plain meaning of the terms of NRS 207.260 provide little additional guidance. The term "annoy" is commonly defined as "to disturb or irritate [especially] by repeated acts."22 The term "molest" is a synonym for the term "annoy" and literally means "to annoy, disturb, or persecute [especially] with hostile intent or injurious effect."23

In Coates v. City of Cincinnati, the Supreme Court considered the use of the word "annoy" in an ordinance that made it unlawful for three or more people to assemble on a sidewalk and "conduct themselves in a manner annoying to persons passing by."24 In holding that the ordinance was "unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard," the Court reasoned:

Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, "men of common intelligence must necessarily guess at its meaning."25

We conclude that the standard of conduct proscribed by NRS 207.260, namely, conduct which is "annoying," does not provide fair notice because the citizens of Nevada must guess when conduct that bothers, disturbs, irritates or harasses a minor rises to the level of criminal conduct.26

We also conclude that NRS 207.260 authorizes and encourages arbitrary enforcement.27 Because the statute fails to adequately set...

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