Grody v. State

• Decision Date: 10 February 1972
• Docket Number: No. 1270S294,1270S294
• Court: Indiana Supreme Court
• Parties: Robert I. GRODY, Kerry Kaplan, Appellants, v. STATE of Indiana, Appellee.

Page 280

278 N.E.2d 280

257 Ind. 651

Robert I. GRODY, Kerry Kaplan, Appellants, v. STATE of Indiana, Appellee.

No. 1270S294.

Supreme Court of Indiana.

Feb. 10, 1972.

F. Thomas Schornhorst, Bloomington, Craig Eldon Pinkus, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Judge.

Appellants were charged in the Monroe Circuit Court with a violation of I.C.1971, 35--19--4--3, being Burns § 10--4533, which reads as follows:

'It shall be a misdemeanor for any person to refuse to leave the premises of any institution established for the purpose of the education of students enrolled therein when so requested, regardless of the reason, by the duly constituted officials of any such institution.'

Appellants filed a motion to quash the affidavit on the grounds the statute was unconstitutional due to vagueness and over-breadth. The trial court overruled the motion, convicted the appellants in a trial without jury, and fined them each $50.00.

Neither party brought the transcript of the trial evidence before this Court on appeal and the sole issue in this case is whether the statute is void on its face due to unconstitutional vagueness and over-breadth in violation of the First and Fourteenth Amendments to the United States Constitution.

The United States Supreme Court has long held that 'a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law.' Baggett v. Bullitt (1964), 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; Connally v. General Construction Co. (1926), 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322.

A distinct but closely related concept is that of statutory overbreadth. A penal statute is unconstitutionally overbroad if its sanctions are applicable to activities that are protected by the First Amendment. Coates v. Cincinnatti (1971) 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214; Keyishian v. Bd. of Regents (1967), 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Elfbrandt v. Russell (1966), 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; Dombrowski v. Pfister (1965), 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22; Aptheker v. Secretary of State (1964), 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992; NAACP v. Button (1963), 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Shelton v. Tucker (1961), 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Cramp v. Bd. of Public Instruction (1961), 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285; Smith v. People of California (1959), 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; Thornhill v. Alabama (1940), 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Castro v. Superior Court of Los Angeles County, 9 Cal.App.3d 675, 88 Cal.Rptr. 500; 'Note, The Void-For-Vagueness Doctrine in the Supreme Court', 109 U.Pa.L.Rev. 67 (1960); 'The First Amendment Overbreadth Doctrine', 83 Harv.L.Rev. 844 (1969). The invalidity of such a statute rests on the fact that it constitutes a substantial deterrent to the free exercise of important First Amendment rights. As the United States Supreme Court said in NAACP v. Button, supra:

'The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. . . . These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. . . . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.' 371 U.S. at 432--433, 83 S.Ct. at 338.

In Keyishian v. Bd. of Regents, supra, the Court said:

'Where statutes have an overbroad sweep, just as where they are vague, 'the hazard of loss or substantial impairment of those precious rights may be critical,' . . . since those covered by the statute are bound to limit their behavior to that which is unquestionably safe.' 385 U.S. at 609, 87 S.Ct. at 687.

Though the doctrines of 'vagueness' and 'overbreadth' are theoretically distinct, the Court often uses them both when dealing with a statute having an inhibiting effect on First Amendment activities.

The issue then is whether a person could be criminally liable under § 10--4533 for engaging in conduct protected by the First Amendment. It is clear that the crime consists in refusing to leave the premises of the educational institution when requested to do so by some 'official'. The question then becomes whether the 'official' can request a person to leave the premises solely because the person is engaging in expressive conduct, even though that conduct is protected by the First Amendment. If he can, then the statute is unconstitutionally overbroad.

This statute attempts to grant to some undefined school 'official' the power to order the cessation of any kind of activity whatsoever, by any person whatsoever and the official does not need to have any special reason for the order. The official's power extends to teachers, employees, students and visitors and is in no way confined to suppressing activities that are interfering with the orderly use of the premises. This statute empowers the official to order any person off the premises because he does not approve of his looks, his opinions, his behavior, no matter how peaceful, or for no reason at all. Since there are no limitations on the reason for such an order, the official can request a person to leave the premises solely because the person is engaging in expressive conduct even though that conduct may be clearly protected by the First Amendment. If the person chooses to continue the First Amendment activity he can be prosecuted for a crime under § 10--4533. This statute is clearly unconstitutionally overbroad.

Burns § 10--4533 is also invalid on an additional ground. Since the persons subject to the act may engage in First Amendment protected activities only with the permission of these unknown 'officials', this statute in effect delegates the power of censorship and prior restraint of the exercise of expressive activities protected by the First Amendment. The United States Supreme Court has clearly enunciated the principles to be applied in such cases. In Staub v. City of Baxley (1958), 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302, the Court said:

'It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official--as by requiring a permit or license which may be granted or withheld in the discretion of such official--is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.' 355 U.S. at 322, 78 S.Ct. at 282.

Niemotko v. Maryland (1951), 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280; Cantwell v. Connecticut (1940), 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Hague v. CIO (1939), 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Lovell v. Griffin (1937), 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949. In Shuttlesworth v. Birmingham (1969), 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162, the Court said:

'There can be no doubt that the Birmingham ordinance, as it was written, confrred upon the City Commission virtually unbridled and absolute power to prohibit any 'parade,' 'procession,' or 'demonstration' on the city's streets or public ways. For in deciding whether or not to withhold a permit, the members of the Commission were to be guided only by their own ideas of 'public welfare, peace, safety, health, decency, good order, morals or convenience.' This ordinance as it was written, therefore, fell squarely within the ambit of the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.' 394 U.S. at 150--151, 89 S.Ct. at 938.

In Kunz v. New York (1951), 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280, the Court said:

'. . . we have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.' 340 U.S. at 294, 71 S.Ct. at 315.

We have found no case where the delegation of power was as sweeping and arbitrary as in § 10--4533. This is sufficient to render the statute invalid under the First Amendment.

It is well to keep in mind that this holding in no way impairs the State's right to use criminal statutes to prohibit the interference with education activities and good order on the premises of educational institutions. However, the statutes must be narrowly directed at the objects f legitimate concern to the State. Without initimating that they are constitutionally valid, we note that in 1969 O.A.G. 15, the Indiana Attorney General has listed over forty sections of the criminal code which in his opinion are applicable to control the unlawful conduct which might occur on the premises of Indiana educational institutions. In addition, the Boards of Trustees of the State universities are empowered 'to govern, by specific regulation and other lawful means, the conduct of students, faculty, employees and others while upon the property owned by or used or occupied by the institution.' I.C.1971, 20--11--1--2, being Burns § 28--6502(b).

The appellee argues that the State has the power to regulate the use of public property just as private owners do and this statute is in effect a trespass statute, applied specifically to educational institutions, to be used in regulating the...