State ex rel. Town of Westerly v. Bradley

• Decision Date: 21 June 2005
• Docket Number: No. 2004-197-C.A.,2004-197-C.A.
• Citation: State ex rel. Town of Westerly v. Bradley, 877 A.2d 601 (R.I. 2005)
• Parties: STATE ex rel. TOWN OF WESTERLY v. Charles M. BRADLEY.
• Court: Rhode Island Supreme Court

877 A.2d 601

STATE ex rel. TOWN OF WESTERLY v. Charles M. BRADLEY.

No. 2004-197-C.A.

Supreme Court of Rhode Island.

June 21, 2005.

Jennifer S. Sternick, Newport News, VA, for Plaintiff.

Charles Michael Bradley, Defendant pro se.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

PER CURIAM.

This case came before the Supreme Court on March 7, 2005, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing arguments of counsel and reviewing the memoranda submitted by the parties, we are satisfied that cause has not been shown. Accordingly, we shall decide the appeal at this time.

Facts and Travel

A breachway is "[a] connecting channel, usually between a coastal pond and the ocean, which permits water exchange between the two." R.I. Code R. 04 000 010 (2005). The Weekapaug Breachway (breachway) in the town of Westerly (town or Westerly) is the focal point of this appeal. Winnapaug Pond, a coastal lagoon or salt pond, also in Westerly, has, as its southerly border, a barrier beach that separates it from the Atlantic Ocean.¹ The breachway connects Winnapaug Pond (pond) with the Atlantic Ocean; it begins at a point slightly southeast of the pond where it cuts through the barrier beach to the sea. From that point, a channel extends north for approximately one-half mile, and then turns to the northwest for approximately another one-half mile to its confluence with the pond. The Weekapaug Bridge (bridge) crosses the channel just north of its northwesterly turn toward the pond. Much of the controversy in this case centers on where the breachway ends and whether the entire channel is part of the breachway.

The pro se defendant, Charles M. Bradley (Bradley or defendant), an attorney, was found guilty in the Municipal Court of the Town of Westerly of violating Westerly Ordinance § 4-45, which prohibits swimming in the town's breachways.² He appealed to the Superior Court and filed a motion to dismiss, asserting that § 4-45 violates his rights under both the state and federal constitutions. The trial justice denied defendant's motion, finding that defendant had adequate notice of the prohibitions of § 4-45 and that the ordinance neither is unconstitutionally vague, nor does it violate the public trust doctrine.

A trial de novo was held before a jury. Westerly Assistant Harbormaster, Eugene P. Trombino (Trombino), testified that, on August 4, 2002, he was on duty, monitoring boat and jet-ski traffic in the breachway. His motorcraft was in a fixed location at the Weekapaug Fire District docks, approximately one-quarter mile north of the bridge. According to Trombino, he "saw a head [in the water] coming down the breachway." That head later was determined to belong to defendant. Trombino explained that he informed the swimmer that swimming was prohibited in the breachway and ordered defendant out of the water. Bradley refused and, according to defendant, he continued "treading water as [he and Trombino] were conversing." Trombino called for backup in case "Mr. Bradley might need transportation to the station." At this point, defendant agreed to get out of the water "and climbed up on [a] piling and sat there until the cruiser arrived." The defendant admitted that he did not immediately remove himself from the waterway; instead, defendant disputed whether he was in the breachway or in "the channel."

According to Trombino, the breachway commenced at the Atlantic Ocean and ended at a point well north of where defendant first was approached and informed that he was in a prohibited area. Trombino testified that, in determining that defendant was within the boundaries of the breachway, he relied on Westerly Ordinance § 4-38.³ According to Trombino, signs were posted on the bridge, facing both north and south, that read "[n]o swimming in breachway." Trombino testified that the breachway is traversed by boats, jet-skis, and other watercraft, and that § 4-38 was implemented as a public safety measure. He explained that the tide rises and falls in the pond, and water rapidly flows through the narrow channel into or out of the pond. According to Trombino, the tide was incoming at a rate of "upwards of five miles an hour" when he observed defendant floating with the tide.

The defendant testified that, after becoming "hot and sunburned" at the beach, he walked across the bridge and followed a path to the edge of the water about 300 yards north of the bridge. The defendant said that he entered the water, intending to "allow the current to take me home to my house." The defendant admitted that he was aware of the signs posted on the bridge prohibiting swimming in the breachway; nevertheless, he declined Trombino's invitation to get out of the water and continued floating past him. According to defendant, he, along with "the locals," considered the breachway to be only that portion of the channel south of the bridge. In testifying on his own behalf, defendant also testified that "if the [t]own is going to prohibit me from swimming in an area, then I have to know beyond a reasonable doubt where that area is."⁴

The issue before the jury was whether defendant was in the breachway when Trombino stopped him and told him to get out of the water. The jury returned a guilty verdict, and defendant timely appealed, reiterating the constitutional arguments made in support of his motion to dismiss.

Vagueness

The defendant argues that § 4-45 is unconstitutionally vague on its face because it does not define the geographical area that constitutes the breachway. In a well-reasoned written decision denying defendant's motion to dismiss, the trial justice found that § 4-45 was not unconstitutionally vague because notice of the breachway's boundaries was provided in § 4-38, and defendant, admittedly, was swimming within those boundaries. We agree. A criminal law may be void for vagueness if it "fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits * * * [or] authorize[s] and even encourage[s] arbitrary and discriminatory enforcement." City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). In a penal statute, the notice requirement is intended to provide an ordinary citizen with the information necessary "to conform his or her conduct to the law." Id. at 58, 119 S.Ct. 1849. These minimal requirements for enforcement of penal laws prevent "`standardless sweep[s that] allow[] policemen, prosecutors, and juries to pursue their personal predilections.'" Kolender, 461 U.S. at 358,103 S.Ct. 1855.

When considering a challenge to the constitutionality of a statute, our review begins with a presumption of constitutionality. Gem Plumbing & Heating Co. v. Rossi, 867 A.2d 796, 808 (R.I.2005). "This [C]ourt will attach `every reasonable intendment in favor of * * * constitutionality' in order to preserve the statute." Id. (quoting Lynch v. King, 120 R.I. 868, 875, 391 A.2d 117, 121 (1978)). The challenger bears the burden of proving beyond a reasonable doubt that the challenged enactment is unconstitutional. Id. (citing Rhode Island Insurers' Insolvency Fund v. Leviton Manufacturing Co., 716 A.2d 730, 734 (R.I.1998)). A vagueness challenge requires this Court to examine the enactment to determine whether it is "impermissibly vague in all of its applications," in violation of due process. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Whiting v. Town of Westerly, 942 F.2d 18, 22 (1st Cir.1991).

To protect the safety of its citizens, Westerly has chosen to prohibit swimming in the breachway and, at the time of this prosecution, the limits of the breachway were defined by the terms of § 4-38. As the trial justice reasoned, it is appropriate to refer to the limits of the breachway, as set forth in § 4-38, to give meaning to § 4-45. In Winters v. New York, 333 U.S. 507, 518, 68 S.Ct. 665, 92 L.Ed. 840 (1948), the United States Supreme Court decreed that courts can examine "[t]he entire text of the statute or the subjects dealt with" in determining whether enacted language is so vague "`that men of common intelligence must necessarily guess at its meaning.'" Id. (quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). The town's proffered intent in adopting §§ 4-38 and 4-45 was to protect the health and safety of its townspeople and visitors from dangers posed by boat and powered motorcraft traffic in the breachway. Both §§ 4-38 and 4-45 share a common subject matter — the safety of people using the breachway.

Also, defendant's contention that the end point of the breachway, as set forth in § 4-38, is ambiguous does not provide a safe harbor for his vagueness challenge to § 4-45. The defendant argues that § 4-38 was intended to define the no-wake zone in the breachway, not the breachway itself, and by its terms, the ordinance provides for an overlap between the north end of the breachway and the beginning of the pond. The ordinance declares that the no-wake zone extends "from the entrance to the Weekapaug Breachway at its intersection with the Weekapaug Bridge and continuing down the breachway past its intersection with Winnapaug Pond * * *." Section 4-38. (Emphasis added.) The defendant contends that the breachway and the pond must be distinct bodies of water, and therefore, the no-wake area defined in § 4-38 extends beyond the unidentified endpoint of the breachway itself. However, it is undisputed that, when he encountered the assistant harbormaster, defendant was in the breachway, as described in § 4-38, and not close to the end of the channel.

Trombino testified that when he first observed Bradley bobbing in the water with the...