District of Columbia v. Walters

• Decision Date: 09 May 1974
• Docket Number: No. 6972.,6972.
• Citation: 319 A.2d 332
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Hubert WALTERS et al., Appellees.
• Court: D.C. Court of Appeals

319 A.2d 332

DISTRICT OF COLUMBIA, Appellant, v. Hubert WALTERS et al., Appellees.

No. 6972.

District of Columbia Court of Appeals.

Argued September 18, 1973.

Decided May 9, 1974.

Rehearing En Banc Denied July 3, 1974.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellant.

Peter Weisman, Washington, D. C., for appellees. David T. Austern, Washington, D. C., also entered an appearance for appellees.

Before KELLY, PICKLING and KERN, Associate Judges.

KERN, Associate Judge:

Each appellee was charged on a printed form information by a check made solely in the box designating "INDECENT ACT . . . commit a lewd, obscene and indecent act . . . in violation of Section 22-1112(a) of the District of Columbia Code."¹ The Police Department forms prepared by the arresting officers and received into evidence by the trial court recite that Hubert Walters and the other eight appellees were arrested inside a commercial establishment in the District of Columbia for engaging in acts of mutual masturbation.

Appellees moved to dismiss the informations on the ground that the part of the statute in question, viz., the third clause of Section 22-1112(a), is unconstitutionally "vague on its face . . . and overbroad." A hearing was held on their motions at which the Director of the Morals Division of the Metropolitan Police Department² testified that he had neither received from his superiors nor transmitted to his subordinates any guidelines for the enforcement of the statute in question (Tr. at 7-8) and that he interpreted the statutory prohibition against "any other lewd, obscene, or indecent act" as proscribing the touching of the genital areas or the display of these portions of the body in public. (Tr. at 10.) According to his further testimony, he left to each branch of his Division responsibility "for having their own standard of operation and guidelines" (Tr. at 20) and the interpretation of statutes is "passed down" by officers to new recruits. (Tr. at 34-35.)

The Lieutenant Commander of the Prostitution, Prohibition and Obscenity Branch testified that in his opinion "acts of mutual masturbation" and "a deliberate touching in the pubic places with intent to arouse one sexually" would constitute a violation of the statute (Tr. at 39).³ He estimated that 98 or 99% of the arrests under the statute were for "homosexual acts between men." (Tr. at 44.) The Commander described the training of a new man assigned to his command as the study "on his own pretty much" of the statute to be enforced, examining past arrest records to give him "a basis of the experience of the previous officers", and an assignment during a "breaking-in period" with an older or more experienced investigator. He acknowledged (Tr. at 69-70) that his opinion of what constituted a lewd, obscene or indecent act in violation of the particular part of the statute in question was "[b]ased on information that was passed on to me by experienced officers that have been working in this particular area."

The trial court concluded (R. at 75) in a thoughtful and comprehensive opinion that the statutory language forming the basis for the charge against appellees was "troublesome and confusing to law enforcement officials . . . [and] insufficiently precise to apprize the citizenry at large of prohibited conduct." The trial judge rejected (R. at 76) the government's urging that he construe the challenged part of this statute so as to avoid constitutional difficulty on the ground that "statutory rewriting is not for the Court. Rather it is a function exclusively within the domain of the legislative branch."

The trial court in addition to granting appellees' motions to dismiss the informations also noted that when a government employee "is arrested and processed through the identification bureau" for sex, narcotics and firearms misdemeanors and all felonies, the Department's Central Records Division regularly notifies in writing the Civil Service Commission or the D.C. Personnel Office, as the case might be, of the arrest. Accordingly, the court ordered (R. at 79) the police (1) to cease and desist notifying all employers of the fact of arrest of an employee for alleged sex offenses until "formal charges" had been filed, (2) to furnish a copy of such notification, when made, to the employee "contemporaneously" with its transmittal to the employer, and (3) to notify the employer of the "ultimate, final disposition of the Court case."

We agree that the part of D.C. Code 1973, § 22-1112(a) under which appellees were charged is unconstitutionally vague. The statute betrays the classic defects of vagueness in that it fails to give clear notice of what conduct is forbidden and invests the police with excessive discretion to decide, after the fact, who has violated the law. See Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 168, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939). Opposing segments of the public may well agree as to the lewdness, obscenity or indecency of many acts, to paraphrase the court in Ricks v. District of Columbia, 134 U.S. App.D.C. 201, 210-211, 414 F.2d 1097, 1106-1107 (1968), but they will disagree about many other acts without approaching absurdity. Thus, there is a broad gray area in which the words of the statute will convey substantially different standards to different people. An act that is obscene to one person may be quite innocent to another — and by proscribing "any other lewd, obscene, or indecent act" the statute is so encyclopedic in its reach that the areas of reasonable disagreement are limitless.

The government proposes several remedies to overcome the defects of the statute. It first cites several state appellate decisions which have construed statutes proscribing "lewd" or "indecent" conduct to save them from a vagueness attack. We view these decisions as inapposite since the words "lewd", "obscene" or "indecent" were paired with other terms (e. g., "indecent exposure") which provided a context in which the words could be given meaning. See State v. Minns, 80 N.M. 269, 454 P.2d 355 (1969) (indecent touching of a minor and indecent exposure in the presence of a minor); People v. Payne, 37 Mich.App. 442, 194 N.W.2d 906 (1971) (indecent liberties with a minor); State v. Roberts, 69 Wash.2d 921, 421 P.2d 1014 (1966) (indecent or obscene exposure); Slusser v. State, 155 Tex.Crim.R. 160, 232 S.W.2d 727 (1950) (permit the use of one's sexual parts in a lewd or lascivious manner); Baker v. State, 16 Ariz.App. 463, 494 P.2d 68 (1972) (obscene phone call).⁴

In Riley v. United States, D.C.App., 298 A.2d 228, 230-231 (1972), cert. denied, 414 U.S. 840, 94 S.Ct. 96, 38 L.Ed.2d 77 (1973), we upheld against a vagueness attack a statute proscribing solicitation for lewd and immoral purposes because the common law meaning⁵ of soliciting for "lewd and immoral purposes" had become well established as relating to sodomy. In contrast, the phrase under attack here, viz., "any other lewd, obscene, or indecent act", has almost limitless application and could have encompassed the acts done in all the cases cited by the governments.⁶

We find equally unpersuasive the government's argument that upon the basis of past police department practice we are now able to construe the statutory phrase in question to mean the deliberate touching in public of one's own or another's genitals for the purpose of sexual arousal. Given the testimony at the hearing before the trial court, it appears that the police themselves have not had a uniform view of the meaning of the particular statutory language. The Director of the Morals Division testified that he had neither received from his superiors nor transmitted to his subordinates any guidelines for enforcement and that interpretation of the statute is "passed down" by officers to new recruits.

Our own decisions, which have reviewed convictions under Section 22-1112(a), do not provide a clear and consistent interpretation upon which we could rely in adopting a construction upholding the statute's constitutionality. Compare Riley v. United States, supra. See Lord v. District of Columbia, D.C.App., 235 A.2d 322 (1967) (no mention what acts were committed); Reed v. District of Columbia, D.C.App., 226 A. 2d 581 (1967) ("touching" a plainclothes police officer in a rest room); Herland v. District of Columbia, D.C.Mun.App., 182 A.2d 362 (1962) ("act of perversion" in a public washroom with another individual of the same sex); Hearn v. District of Columbia, D.C.Mun.App., 178 A.2d 434 (1962) (conviction for indecent exposure upheld but reversed conviction for indecent act under the same facts); Rittenour v. District of Columbia, D.C.Mun.App., 163 A.2d 558 (1960) (reversing conviction) (undercover police officer got into defendant's home on pretense and induced defendant to touch him); and, McGhee v. District of Columbia, D.C.Mun.App., 137 A.2d 721 (1958) (committed "an act" in front of a window of an apartment house).

In rejecting the avenues of statutory interpretation proposed by the government to save this statute, we acknowledge the cardinal principle that a court should first ascertain whether a construction of a statute is fairly possible that will avoid the question of its constitutionality even though serious doubt exists as to the statute's validity. Ashwander v. TVA, 297 U. S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (concurring opinion) and the cases cited therein. However, we view the part of D.C.Code 1973, § 22-1112(a) being challenged as so lacking in coordinates, other than its apparent application to sexual matters, that inadequate guidance has been given us for our development of a remedial formula for a saving construction.⁷ Pertinent here is the oft-quoted passage from United States v....