State v. Abellano

• Decision Date: 23 May 1968
• Docket Number: No. 4705,4705
• Citation: 441 P.2d 333,50 Haw. 384
• Parties: STATE of hawall v. Faustino ABELLANO et al.
• Court: Hawaii Supreme Court

Page 333

441 P.2d 333

50 Haw. 384

STATE of hawall v. Faustino ABELLANO et al.

No. 4705.

Supreme Court of Hawai'i.

May 23, 1968.

Syllabus by the Court

1. To satisfy the requirement of due process of law, a penal statute must state with reasonable clarity the act it prohibits.

2. A statute proscribing 'presence' at a cockfight or at a gambling game is too vague to satisfy the constitutional requirement of due process.

John A. Radway, Jr., Deputy Pros. Atty., Honolulu, (John H. Peters, Pros. Atty., and T. Irving Chang, Deputy Pros. Atty., Honolulu, with him on the briefs), for appellant.

John C. Lanham, Wahiawa, for respondents.

Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ.

ABE, Justice.

The thirteen defendants-appellees were arrested on August 1, 1965 for violating section 13-3.1 of the Revised Ordinances of the City and County of Honolulu, 1961. ¹ The State charged that defendants:

did engage or participate in, or were present at, a cockfight exhitition. * * *

Although they were formally charged with participating, apparently the defendants did no more than be present at a place where a codkfight was being held. A district magistrate granted the defendants' motion to dismiss on the grounds that the ordinance is:

null and void as being in conflict with State statute (and) unconstitutionally and unreasonably infringes upon a person's freedom of locomotion and movement.

The State appealed.

We affirm the dismissal. We do not reach the question whether state legislation in the area pre-empted the field.

A fundamental aspect of the somewhat amorphous concept of due process of law is that a penal statute must state with reasonable clarity the acts it proscribes. Territory of Hawaii v. Numu, 43 Haw. 66 (1958); Territory v. Anduha, 31 Haw. 459 (1930), aff'd 48 F.2d 171 (9th Cir. 1931). A criminal statute is unconstitutional if it is not

sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties * * *. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed.322 (1926).

In determining whether the standard of being 'present at' a cockfight is unconstitutionally vague, we are met at the outset with this court's ruling in Territory of Hawaii v. Wong, 40 Haw. 257 (1953). There the court sustained against the claim of unconstitutional vagueness a statute which made it unlawful to be 'present' where a gambling game was being played. The court construed the word present to mean intentional presence with knowledge that a gambling game was going on. It set out orbits of nearness and determined whether persons within each orbit were present as that term was used in the statute. While recognizing that the applicability of the statute remained dubious in many situations, it concluded that the statute as construed was not constitutionally defective for vagueness.

We overrule Territory of Hawaii v. Wong. The court went too far in attempting to sustain the statute. The judicial power to hold a legislative enactment unconstitutional should be exercised prudently and with restraint. But this does not mean that the legislature can avoid the constitutional mandate to state clearly the acts proscribed and then expect a court to narrow the overly broad terms it selected. The mere fact that marginal cases are conceivable does not, of course, justify a court in holding a statute unconstitutional. United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989 (1954); United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). Scrutinizing the Wong opinion convinces us that even the court's ingenious construction of 'present at' left more than marginal cases hanging in the balance.

An ordinance or statute proscribing presence, whether at a cockfight, a gambling game, or a house of prostitution, is too vague to satisfy the requirements of due process. Primarily, the term presence has a spacio-physical frame of reference. Unless the activity at which presence is unlawful is in a narrowly confined place, determination of what constitutes presence at the activity can be resolved only on the basis of policy. Setting such policy is a legislative function. The legislative body has failed to make clear its policy determination. For this court to attempt to rewrite the ordinance to cure the constitutional defect would be an unconstitutional exercise of legislative power.

Affirmed.

Concurring opinion of LEVINSON, J., in which RICHARDSON, C. J., joins.

I agree with the majority opinion that the ordinance is unconstitutionally vague, thereby violating the due process clause of the Fourteenth Amendment to the Constitution of the United States and the due process clause of Article 1, Section 4 of the Constitution of the State of Hawaii. I also agree that Territory of Hawaii v. Wong, 40 Haw. 257 (1953) should be overruled. But the majority opinion ignores the fact that the ordinance, which proscribes 'presence', also violates the Ninth Amendment to the Federal Constitution and Article 1, Section 2 of the State Constitution.

The appellees argued that the ordinance infringes on their constitutionally guaranteed freedom of movement. I think it is time to recognize that the United States and Hawaii Constitutions protect against such infringement. Freedom of movement is a vital aspect of the right of privacy which must be recognized if we are to preserve individual freedom.

Although the Federal Constitution does not refer to a general right of privacy or freedom of movement, both have been long and consistently recognized as adjuncts of specific constitutional provisions. Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958); Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186 (1900); Crandall v. State of Nevada, 73 U.S. (6 Wall.) 35, 18 L.Ed. 744 (1867). Furthermore, the Constitution has been held to protect other rights not specifically mentioned, Pierce v. Society of Sisters etc., 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).

Most recently, in Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Court, with only one justice dissenting, recognized a constitutional right to marital privacy which a state could not invade by a low prohibiting the use of contraceptives. Unfortunately, the majority and concurring opinions disagreed as to the constitutional source of that right. Justice Douglas' opinion for the Court concluded that the 'specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance'. 381 U.S. at 484, 85 S.Ct. at 1681. Justice Goldberg's concurring opinion concludes that the Ninth Amendment

Lends strong support to the view that the 'liberty' protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. 381 U.S. at 493, 85 S.Ct. at 1686.

Justice Harlan and White, in separate concurring opinions, applied the Flexible due process approach of the Fourteenth Amendment and found the right to marital privacy fundamental.

Despite the disagreement over the proper approach, it is clear that a majority of the United States Supreme Court has recognized a right of privacy as fundamental. ¹ Concededly the privacy protected under Griswold is marital privacy. But the various opinion point the way toward an expanding constitutional right of privacy, as a necessary check on society's increasing demands for the subordination of the individual to a highly technological and computerized society.

When faced with the assertion of a constitutional right not previously recognized either in judicial opinions or enumerated in the Constitution, a court must determine the answers to two preliminary questions. First, precisely what is the nature of the right asserted? Second, where in the Constitution is the right guaranteed?

The precise nature of the right the appellees assert is one basic to all free men. Freedom is meaningless if it does not include the right to move from place to place during the course of a day, to stand in an open field, to visit a friend's home, to sit and listen to a lecture or participate in a discussion. The appellees do not assert that they were exercising a First Amendment freedom or that their First Amendment freedoms will be curtailed by application of the ordinance to their conduct. The right they assert is completly independent of any other constitutionally protected rights.

Freedom of movement is a species of the general right to be let alone so basic to a free society and so well articulated by Justice Brandeis:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone most comprehensive of rights and the right most valued by Civilized men. Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (dissenting).

It would be folly of the greatest magnitude to underestimate, in its many manifestations, the importance to a free society of the right of privacy. Privacy,...