People ex rel. City of Arvada v. Nissen, 81SC399

• Decision Date: 07 September 1982
• Docket Number: No. 81SC399,81SC399
• Citation: 650 P.2d 547
• Parties: PEOPLE of the State of Colorado, ex rel. The CITY OF ARVADA, Petitioner, v. David Edward NISSEN, Respondent.
• Court: Colorado Supreme Court

Page 547

650 P.2d 547

PEOPLE of the State of Colorado, ex rel. The CITY OF ARVADA, Petitioner, v. David Edward NISSEN, Respondent.

No. 81SC399.

Supreme Court of Colorado,

En Banc.

Sept. 7, 1982.

Patricia C. Tisdale, Eileen A. Muench, Arvada, for petitioner.

No Appearance for respondent.

QUINN, Justice.

We granted certiorari to review a decision of the District Court of Jefferson County which affirmed a judgment of dismissal entered by the Arvada Municipal Court in a prosecution commenced by the petitioner, City of Arvada (Arvada), against the respondent, David Edward Nissen, for violating a municipal ordinance proscribing the offense of battery. The municipal court dismissed the case on the ground that the ordinance was impermissibly vague in violation of due process of law under the United States and Colorado Constitutions, U.S. Const. Amend. XIV; Colo. Const. Art. II, Sec. 25, and the judgment of dismissal was affirmed by the district court. We conclude that the ordinance is not unconstitutionally vague and, therefore, we reverse the judgment and remand the case for further proceedings.

I.

The facts are not in dispute. On April 12, 1981, Nissen was charged with violating section 17-8A of the Arvada City Code, which makes it unlawful "for any person to intentionally or recklessly strike or hit another." ¹ Prior to the commencement of trial Nissen orally moved to dismiss the complaint. Specifically, he claimed that Arvada's battery ordinance violated due process of law because it required neither an intent to injure nor a minimum amount of force sufficient to cause an injury, and also because it did not expressly limit battery to contacts which were neither privileged nor consensual. ² Arvada opposed the motion, contending that its evidence at trial would establish that Nissen struck the victim with intent to cause injury. The municipal court concluded that the ordinance's failure to require an intent to injure rendered it unconstitutionally vague. ³ Arvada appealed to the district court which affirmed the judgment because, in its view, "there is no described intent given to define the act of battery as a criminal activity" and, therefore, the ordinance "allows police and judges to use large amounts of discretion as to the citing of possible offenders."

Arvada urges reversal of the judgment on the grounds that Nissen lacked standing to raise the unconstitutionality of the ordinance before the municipal court and, even with standing, the ordinance passes constitutional muster under due process standards. ⁴ We consider Arvada's claims separately.

II.

Arvada initially argues that Nissen lacked standing to assert unconstitutional vagueness because the evidence at trial would have placed his conduct at the core of the ordinance's proscription. We recognize that generally "one is not entitled to assail the constitutionality of a statute except as he is adversely affected by its application to him in a given case." People in the Interest of C.M., 630 P.2d 593, 594 (Colo. 1981). Nissen's challenge to the Arvada ordinance, however, rested primarily ⁵ on the meaning of those terms of the ordinance which constituted the basis of the prosecution pending against him--that is, "to intentionally or recklessly strike or hit another." If, indeed, the ordinance is so vague as to violate due process of law, then "[n]either a detailed charging document nor a fully developed factual record can serve to validate [it]." People in the Interest of C.M., 630 P.2d at 594, citing Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890 (1939). Consequently, under the circumstances present here, we conclude that Nissen had standing to challenge the ordinance. E.g., People in the Interest of C.M., supra; L.D. S., Inc. v. Healy, 197 Colo. 19, 589 P.2d 490 (1979); People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972). We thus turn to the issue whether the ordinance is void for vagueness.

III.

In addressing the issue of unconstitutional vagueness some basic rules of statutory adjudication must guide our analysis. An ordinance is presumed to be constitutional, the burden being on the party attacking the ordinance to establish its unconstitutionality beyond a reasonable doubt. E.g., People in the Interest of C.M., supra; Bollier v. People, 635 P.2d 543 (Colo.1981); People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979); People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978). If a challenged ordinance lends itself to alternate constructions, one of which is constitutional, the constitutional interpretation must be adopted. People v. Smith, 638 P.2d 1 (Colo. 1981); People in the Interest of C.M., supra; People v. Fitzgerald, 194 Colo. 415, 573 P.2d 100 (1978). Also, it must be borne in mind that due process of law has never required mathematical exactitude in legislative draftsmanship. E.g., People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975). While an ordinance must be sufficiently specific to give fair warning of the proscribed conduct, it also often must remain sufficiently general to be capable of application under varied circumstances. Colorado Auto and Truck Wreckers v. Dept. of Revenue, Colo., 618 P.2d 646, 651 (1980).

The controlling principle in a void for vagueness challenge is whether the questioned law "either forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its application ...." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed.2d 322, 328 (1926); see also e.g., People v. Jennings, 641 P.2d 276 (Colo. 1982); People v. Smith, supra; People in the Interest of C.M., supra. Two basic interests underlie this principle. First, the interest in fair notice requires the law to be sufficiently definite to alert the populace to the nature of the proscribed conduct so that they may control their actions accordingly. Second, the interest in even-handed treatment requires that the law provide specific standards for those charged with its enforcement so that arbitrary and discriminatory application will be avoided. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); People v. Jennings, supra; People v. Smith, supra; People in the Interest of C.M., supra. It is within this principle that Arvada's ordinance must be evaluated.

The district court did not articulate a clear rationale for its affirmance of the dismissal order. Instead, it merely stated that the ordinance was unconstitutional because "there is no described intent given to define the act of battery." While this statement appears to be consistent with the reasoning of the municipal court, which based its order of dismissal on the failure of the ordinance to require an intent to injure, it is at least arguable that the district court viewed as fatal the failure of the ordinance to separately define "intentionally" and "recklessly." To ensure that we evaluate the real and intended basis of the district court's decision, we will address both possible infirmities as well as the other arguments advanced by Nissen before the municipal court, namely, the ordinance's failure to require an amount of force sufficient to cause an injury and the possible applicability of the ordinance to what would otherwise might be considered privileged or consensual contacts.

We do not see how the failure of the ordinance to require an intent to injure raises a problem of unconstitutional vagueness. It goes without saying that the decision to include or exclude a particular element in defining unlawful conduct is, in the first instance, a matter of legislative prerogative. The Due Process Clause generally is not implicated by such policy decisions unless it can be said that the enactment "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281, 287 (1977); see also People v. Ledman, 622 P.2d 534 (Colo. 1981). We know of no principle enshrining an intent to injure as a fundamental principle of justice in any battery prosecution. On the contrary, at common law the gist of the action for battery was not the intent to injure but the absence of consent by the victim to the offensive contact with his person. W. Prosser, Law of Torts 36 (4th ed.1971). In our view the decision of the Arvada City Council to define battery without reference to a specific intent to injure another does not raise a meritorious claim under the void for vagueness doctrine.

Nor does the failure of the ordinance to separately define the words "intentionally" and "recklessly" render the statute unconstitutionally vague. "This court ... has never required that every statutory word or phrase be specifically defined," and we have "often made reference to standard dictionaries and to the case law to determine the probable legislative intent in using a particular word." People v. Blue, 190 Colo. at 100, 544 P.2d at 388. In common parlance an intentional act is one performed for the purpose of achieving a desired object. See Webster's Third New International Dictionary 1176 (3d ed. 1961). A person may be said to act recklessly when his action is grossly heedless of consequences. See Webster's Third New International Dictionary 1896 (3d ed. 1961). The terms "intentionally" and "recklessly" are not strangers to the average person. Law enforcement officers have a practical understanding of their significance to human conduct, and judges and juries are quite capable of applying them to varied circumstances in the resolution of legal disputes. When considered in the context of striking or hitting another, we are satisfied that the terms "intentionally" and "recklessly" are sufficiently clear to persons of ordinary intelligence to afford a practical guide for law-abiding behavior and are capable of application...