McKENZIE AND GREEN v. State, 1075

• Decision Date: 10 March 2000
• Docket Number: No. 1075,1075
• Citation: 748 A.2d 67,131 Md. App. 89
• Parties: Jon-Mikael McKENZIE and Vaughn E. Green v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

748 A.2d 67

131 Md. App. 89

Jon-Mikael McKENZIE and Vaughn E. Green v. STATE of Maryland.

No. 1075, Sept. Term, 1999.

Court of Special Appeals of Maryland.

March 10, 2000.

Chirag V. Patel (Chirag V. Patel & Associates, P.A., on the brief), Baltimore, for appellants.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Baltimore and Logan C. Widdowson, State's Atty. for Somerset County, Princess Anne, on the brief), for appellee.

Argued before EYLER, THIEME and SONNER, JJ.

THIEME, Judge.

This case arises from four criminal informations filed in the Circuit Court for Somerset County on June 18, 1998, charging appellant Jon-Mikael McKenzie and his co-defendant Vaughn E. Green¹ with second degree assault, hazing, and reckless endangerment. In the first, McKenzie was charged with three offenses against Marques Polk; in the second, the named victim was Dwayne Motley. In the third and fourth, Green was charged in connection with offenses against the two named victims. The court called all four cases for trial on May 19, 1999, and McKenzie moved to dismiss the second count of the informations, the charge of hazing in violation of Maryland Code (1957, 1996 Repl. Vol.), Art. 27 § 268H, on grounds that the statute was unconstitutional. The court denied the motion and the case proceeded.

The defendants pleaded not guilty on an agreed statement of facts. McKenzie was convicted on the hazing counts, and the remaining counts were nolle prossed. The court sentenced McKenzie to 90 days in the Somerset County Detention Center, which was suspended, and 18 months' probation. It also fined him $500 and court costs. McKenzie filed a notice of appeal on June 18 and presents the following questions:

1. Is Article 27, section 268H of the Maryland Code, which prohibits the hazing of students, unconstitutional in that it is impermissibly vague and overbroad?

2. Does Article 27, section 268H of the Maryland Code unconstitutionally violate the First Amendment right to freedom of speech by regulating speech based on conduct?

3. Does Article 27, section 268H of the Maryland Code unconstitutionally violate the First Amendment rights to freedom of association and assembly?

We answer "no" to these questions, and we explain.

Facts

The following stipulated facts were adduced at the trial, after McKenzie agreed on the record to proceed in this way.

McKenzie was a member of the Kappa Alpha Psi Fraternity at the University of Maryland Eastern Shore (UMES). The faculty advisor of this fraternity had informed McKenzie that the hazing of pledges was not permitted, and McKenzie had agreed in writing that he would not engage in hazing.

Nevertheless, at an unofficial meeting of pledges on February 8, 1998, fraternity leaders told Marquez Polk and Dwayne Motley that they would be beaten as part of their initiation into the fraternity. If they did not agree to be hazed, they would not enjoy full membership privileges.² Over the course of the next two months, the men were struck, spanked, slapped, kicked, paddled, and caned "enumerable times." So severe were the beatings that the canes and paddles used often broke on the pledges, and the two named victims were rendered bloody on several occasions. McKenzie, among others, inflicted the beatings.

As a result of the beatings, both Polk and Motley eventually were hospitalized, presenting two main medical conditions: i) subcutaneous bleeding in the buttocks, and ii) gangrene in the tissue of the buttocks. Without medical intervention, both conditions are potentially fatal. Both men underwent surgery, during which physicians excised large amounts of tissue and performed skin grafts.

Discussion

In this case of first impression, two young men submitted to serious and repeated beatings and sustained potentially life-threatening injuries because they wanted full membership in a college social fraternity. Consent notwithstanding, such battering has been illegal in Maryland since 1985. UMES has issued strong policy statements against using any sort of physical abuse during pledge initiations. The circuit court found appellant guilty under Maryland Code (1957, 1996 Repl. Vol.), Art. 27 § 268H, which prohibits the hazing of students. Yet, because paddling, caning, and various other forms of physical abuse seem to be a time-honored, if not closeted, initiation ritual in his college fraternity,³ appellant comes before us, cloaked in the Constitution, straining to uphold this hoary tradition. His arguments, in our view, have little merit, and we stand stunned that appellant would so stretch the First and Fourteenth Amendments to escape the consequences of actions so pellucidly proscribed by state law and school policy. The instant appeal is the first challenge to Maryland's anti-hazing statute, but the issues before us today have been played out in cases before the high courts of other states. Authority weighs against appellant; we thus affirm the trial court.

I

In 1985, the General Assembly prohibited the hazing of students by enacting the statute now codified at section 268H of Article 27. This statute provides, in full:

(a) Haze defined.—In this section "haze" means doing any act or causing any situation which recklessly or intentionally subjects a student to the risk of serious bodily injury for the purpose of initiation into a student organization of a school, college, or university.

(b) Violation constitutes misdemeanor; penalty.—A person who hazes a student so as to cause serious bodily injury to the student at any school, college, or university is guilty of a misdemeanor and, on conviction, is subject to a fine of not more than $500, or imprisonment for not more than 6 months, or both.

(c) Consent of student not defense.— The implied or expressed consent of a student to hazing may not be a defense under this section.

Md.Code (1957, 1996 Repl.Vol.), Art. 27 § 268H.

From the plain language of the statute, the State must establish that the defendant, under the statutory definition, hazes a student at any school, college, or university so as to cause serious bodily injury to that student. Lest there be any doubt about which activities might be included, the legislature defined hazing as doing any act or creating any situation for the purpose of initiation into a student organization that could recklessly or intentionally subject a student to the risk of serious bodily injury. Despite the statute's clarity, appellant argues that it is both overbroad and vague. We disagree.

A

Appellant first argues that the anti-hazing statute is overbroad, treating overbreadth and vagueness as a single issue. We first examine it for overbreadth, which as part of the standing doctrine is a threshold issue. Because this statute neither infringes appellant's rights under the First Amendment, see infra, nor inhibits the exercise of these rights by others persons, we reject his challenge.

The judge-made doctrine of overbreadth is an exception to the general rule on standing. Normally, a litigant only has standing to vindicate his own constitutional rights, and he cannot challenge a statute on the ground that it might be applied unconstitutionally to other persons and in other situations not before the court.⁴ Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 797-99, 104 S.Ct. 2118, 2124-25, 80 L.Ed.2d 772 (1984) (citing Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973); Thornhill v. Alabama, 310 U.S. 88, 104, 60 S.Ct. 736, 745, 84 L.Ed. 1093 (1940)). The doctrine of overbreadth, however, allows the court to reach and invalidate those laws that may prohibit the constitutionally protected speech of third parties. Vincent, 466 U.S. at 798, 104 S.Ct. 2118. "[E]ven ... a party whose own conduct may be unprotected" may challenge such laws under the doctrine of overbreadth. Id.

Lest "the exception to ordinary standing requirements ... swallow the general rule," id. at 799, 104 S.Ct. 2118, we determine whether the doctrine applies in a particular case by measuring "the likelihood that the statute's very existence will inhibit free expression." Id. We must find that the statute poses a realistic danger of significantly compromising the recognized First Amendment rights of persons not before this Court, before we can entertain a facial challenge for overbreadth. Id. at 801, 104 S.Ct. 2118. Appellant must show that the anti-hazing statute "`could never be applied in a valid manner'" or that, even though it may be validly applied to appellant and other similarly situated fraternity and sorority members, "it nevertheless is so broad that it `may inhibit the constitutionally protected speech of third parties.'" New York State Club Ass'n v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1 (1988) (quoting Vincent, 466 U.S. at 798, 104 S.Ct. at 2125). These are tough standards to meet. The former standard "will not succeed unless the court finds that `every application of the statute create[s] an impermissible risk of suppression of ideas.'" Id. The latter "is justified only by the recognition that free expression may be inhibited almost as easily by potential or threatened use of power as by the actual exercise of that power." Id. (citing Thornhill, 310 U.S. at 97-98, 60 S.Ct. 736). Furthermore, where an ordinary criminal law is involved, "overbreadth claims, if entertained at all, have been curtailed." Broadrick, 413 U.S. at 613, 93 S.Ct. at 2917. Indeed, overbreadth is "strong medicine" to be used "sparingly and as a last resort." Id.; New York State Club Ass'n, 487 U.S. at 14, 108 S.Ct. at 2234. Accord Los Angeles Police Dep't v. United Reporting Publ'g Corp., ___ U.S. ___, ___, 120 S.Ct. 483, 489, 145 L.Ed.2d 451 (1999)

.

Appellant's overbreadth argument, scrambled together with his contentions on vagueness, fails to show us how either standard applies here. Not only does he fail to apply properly the doctrine of overbreadth to his unique facts, but...