Severson v. Duff

• Decision Date: 29 December 1970
• Docket Number: Civ. A. No. 70-322-Civ-J.
• Citation: 322 F. Supp. 4
• Parties: Elizabeth A. SEVERSON, Petitioner, v. Edwin H. DUFF, II, as Sheriff of Volusia County, Florida, Respondent.
• Court: U.S. District Court — Middle District of Florida

322 F. Supp. 4

Elizabeth A. SEVERSON, Petitioner, v. Edwin H. DUFF, II, as Sheriff of Volusia County, Florida, Respondent.

Civ. A. No. 70-322-Civ-J.

United States District Court, M. D. Florida, Jacksonville Division.

December 29, 1970.

Thomas A. Goldsmith, Daytona Beach, Fla., for petitioner.

Earl Faircloth, Atty. Gen., of Fla., Tallahassee, Ronald Sabo, Asst. Atty. Gen., for respondent.

ORDER

WILLIAM A. McRAE, Jr., District Judge.

Petitioner has submitted to this Court a petition for writ of habeas corpus under 28 U.S.C. § 2254.

The petition alleges that the petitioner was convicted and adjudged guilty of disorderly conduct in violation of Florida Statutes, section 877.03 (1967), F.S. A., and was sentenced to 90 days incarceration by the Volusia County Circuit Court on March 30, 1970. Petitioner asserts that the statute is unconstitutional on its face for vagueness, in violation of the fifth and fourteenth amendments to the Constitution of the United States, and for overbreadth, in violation of the guarantees of the first and fourteenth amendments to the Constitution of the United States; we agree, and vacate, and expunge her sentence and conviction.

This Court, in its order of October 2, 1970, reported at 318 F.Supp. 17, found:

1. Petitioner has not deliberately by-passed state remedies.

2. Exhaustion of state remedies would be futile, and abstention is inappropriate.

3. This Court, acting with a single judge, has jurisdiction to pass on the constitutionality of the state statute under attack here; and

4. Respondent was ordered to show cause why habeas corpus relief should not be granted and why Florida Statutes, section 877.03, F.S.A., should not be held unconstitutional on its face or as applied.¹

The statute under attack, section 877.03, Florida Statutes, F.S.A., provides as follows:

Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor, and subject to punishment as provided by law.

VAGUENESS

Petitioner contends that the Florida disorderly conduct statute set out above is unconstitutionally vague on its face and as applied in her case. She was charged and convicted for "use of profane, loud, or boisterous language so as to outrage the sense of public decency, and in such a manner as to constitute a breach of the peace." No act apart from "language" was alleged, and the warrant speaks solely in terms of the statute's test, "outrage the sense of public decency."

Because we find the statute unconstitutional on its face for vagueness and overbreadth, it is unnecessary to consider the application of the statute to her. See Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 845, 846 (1970).

In order to comport with fundamental concepts of fairness, a statute or a charge must be phrased in terms sufficiently definite so that men of common intelligence will not have to guess at its meaning and application. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). In Scott v. District Attorney, 309 F. Supp. 833, 836 (E.D.La.1970), it was stated:

Criminal statutes that do not clearly define the outlawed conduct may contravene the Fourteenth Amendment guarantee of due process by subjecting the accused to a penalty for behavior that he could not intelligently have known was forbidden. Such vagueness is unconstitutional not only because it fails to warn a person that his behavior may be criminal, but also because it compels enforcement officers, as well, to guess at what violates the law, thus either setting the stage for arbitrary police action or, if police and prosecutors evolve their own rational standards of enforcement, constituting an inappropriate delegation of criminal lawmaking authority.

In Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377

(1964), the Supreme Court observed in a different context:

It will not do to say that a prosecutor's sense of fairness and the Constitution would prevent a successful perjury prosecution for some of the activities seemingly embraced within the sweeping statutory definitions. * * Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.

It is necessary first to consider if Florida courts have, by case law, construed the statute involved herein so as to narrow the usual signification of its words.

The Florida courts have had several occasions in which convictions under disorderly conduct and breach of the peace ordinances have been upheld. In City of St. Petersburg v. Calbeck, 114 So.2d 316 (Fla.2d D.C.A.1959), with further opinion at 121 So.2d 814 (Fla.2d D.C.A. 1960), the court upheld a disorderly conduct conviction for "abusive and profane language" and reversed a circuit court determination that the ordinance was void for vagueness. The Calbeck court quoted with approval language from Florida Jurisprudence:

The term disorderly conduct has been construed as embracing all such acts and conduct as are of a nature to corrupt the public morals or to outrage the sense of public decency, whether committed by words or acts.

And the Calbeck court construed the statutory "acts" to include language. In Headley v. Selkowitz, 171 So.2d 368 (Fla.1965) (vagrancy ordinance), an ordinance challenged for vagueness was tested by the Calbeck "standards." See also Matteson v. City of Eustis, 140 Fla. 591, 190 So. 558 (1939); Nixon v. State, 178 So.2d 620 (Fla.3d D.C.A.1965); City of Miami v. Kobley, 29 Fla.Supp. 142 (Fla.Cir.Ct.Dade Cty.1967).² These decisions do not narrow the statutory tests of acts that "are of a nature to corrupt public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them." Indeed, the Calbeck decision confirms that the statute prohibits certain language and that the tests of the statute are valid in the eyes of the state courts. This case, then, comes before this Court in a different posture from those in which state courts have properly narrowed the challenged statute. E. g., Wright v. City of Montgomery, 406 F.2d 867 (5th Cir. 1969); United States v. Jones, 365 F.2d 675 (2d Cir. 1966); Heard v. Rizzo, 281 F.Supp. 720, 741, 742 (E.D.Pa.1968).

The statutory tests as they are written must meet constitutional standards for both definitiveness and first amendment protections. In the recent case of Smith v. State, 237 So.2d 139 (Fla. 1970), the Florida Supreme Court, after referring to the Calbeck standards, quoted United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947):

Impossible standards are not required, however, statutory language that conveys a definite warning as to proscribed conduct when measured by common understanding and practices satisfies due process.

See United States v. Woodward, 376 F.2d 136 (7th Cir. 1967).

The first tests in the statute attacked herein relate to a corruption of the public morals or an outrage of the sense of public decency. Such standards do not convey a warning of what conduct is proscribed, and may be unconstitutionally applied to both protected and illegal conduct, including speech. Similar tests have been stricken in numerous other cases. In Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966), a jury instruction defining the offense of criminal libel as "any writing calculated to create disturbances of the peace, corrupt the public morals, or lead to any act, which, when done, is indictable," (emphasis added), was held to be so indefinite and uncertain that it could not be enforced as a penal offense. Carmichael v. Allen, 267 F.Supp. 985 (N.D. Ga.1967) held unconstitutional for vagueness and overbreadth an ordinance which provided that "It shall be unlawful for any person to act in a violent, turbulent, quarrelsome, boisterous, indecent or disorderly manner, or to use profane, vulgar or obscene language, or to do anything tending to disturb the good order, morals, peace or dignity of the City." (Emphasis added.) In so holding, the court said in part: "It takes no elaboration to demonstrate that * * the use of the term `tending to disturb the good order, morals, * * * or dignity of the City' leaves `to the executive and judicial branches too wide a discretion in the application' of the law. It too readily permits them to make a crime out of what is protected activity." The case of Baker v. Bindner, 274 F. Supp. 658 (W.D.Ky.1967) similarly held unconstitutional a state court construction of the ordinance there under attack which limited disorderly conduct to "words and acts which tend to disturb the peace or endanger the morals, safety or health of the community, or of a class of persons or family." (Emphasis added.) The Baker court observed at 663:

An examination of the ordinance can leave no doubt that it is broader than that condemned by the United States Supreme Court both in Edwards v. South Carolina, 372 U.S. 229 at 238, 83 S.Ct. 680 at 685, 9 L.Ed.2d 697 1963 and in Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 1949. It leaves to the executive and judicial branches too wide a discretion in the application of the law and too readily permits them to make a crime out of what is protected activity.

Most recently the Fifth Circuit noted that a statute that proscribes acts or gestures which are calculated to or will probably "so outrage the sense of decency and morals or so violate or transgress the customs, pattern of life and habits of the people of Alabama as to be likely to cause a riot or breach of the peace * * *." is of "dubious validity." (Emphasis aded). LeFlore v. Robinson, 434 F.2d 933 (5th Cir. Nov. 12, 1970). Two disorderly conduct ordinances have also been declared unconstitutional by...