State v. Albers

• Decision Date: 29 March 1973
• Docket Number: No. 6542,6542
• Citation: 113 N.H. 132,303 A.2d 197
• Parties: STATE v. Elizabeth ALBERS & a.
• Court: New Hampshire Supreme Court

Page 197

303 A.2d 197

113 N.H. 132

STATE v. Elizabeth ALBERS & a.

No. 6542.

Supreme Court of New Hampshire.

March 29, 1973.

Warren B. Rudman, Atty. Gen., and David W. Hess, Asst. Atty. Gen. (Mr. Hess orally), for the State.

William S. Orcutt, chief counsel for New Hampshire Civil Liberties Union, Manchester (Mr. Orcutt orally), for the defendants.

KENISON, Chief Justice.

The question presented for decision in this case is whether RSA 609-A:1 II (Supp.1972) is void on its face for vagueness and overbreadth. This question is raised by the named defendant and fourteen others who were arrested on May 15, 1972, at or near the entrance to Pease Air Force Base, while engaging in a protest demonstration against the Vietnam War and, allegedly, while standing in a public highway blocking traffic.

The defendants were charged under RSA 609-A:4 (Supp.1972) with failing to withdraw from a mob action, as defined in RSA 609-A:1 (Supp.1972), after being commanded to do so by a police officer. Before entering pleas in district court, each of the defendants moved to dismiss the complaints on two grounds: (1) That the complaints were defective in that they did not apprise the defendants of the specific offense under RSA 609-A:1 (Supp.1972) with which they were being charged; and (2) That subsection II of RSA 609-A:1 (Supp.1972), the particular section of the statute defining mob action as 'the assembly of two or more persons to do an unlawful act' and under which the State in fact was charging the defendants, is unconstitutionally vague and overbroad. These two questions were reserved by the Portsmouth District Court (Flynn, J.) and transferred without ruling to this court. Counsel for the defendants at oral argument waived the first claim, stating that defendants would rely entirely upon the claim of vagueness and overbreadth.

A statute or ordinance is void for vagueness when it '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.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926); Zwickler v. Koota, 389 U.S. 241, 249, 88 S.Ct. 391, 396, 19 L.Ed.2d 444, 451 (1967); State v. Parker, 109 N.H. 491, 256 A.2d 159 (1969). If the criminal enactment 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden,' it is impermissibly vague and indefinite. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954); Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972). The vagueness doctrine rests upon the two-pronged premise of procedural due process that criminal laws must in the first instance give reasonably clear notice or warning to the potential offender of the specific conduct proscribed (State v. Parker, supra) and must ultimately give 'ascertainable standards of guilt' to the judge and jury charged with making an objective determination of guilt. Chronicle, etc. Pub. Co. v. Attorney-General, 94 N.H. 148, 48 A.2d 478 (1946); Cline v. Frink Dairy Co., 274 U.S. 445, 465, 47 S.Ct. 681, 687, 71 L.Ed. 1146, 1156 (1927); Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840, 949 (1948); Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222, 227 (1972); Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584, 589 (1972). See generally Collings, Unconstitutional Uncertainty-An Appraisal, 40 Cornell L.Rev. 195, 196-97 (1955); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 68-69 (1960).

A statute or ordinance is void for overbreadth when it offends the substantive due process notion that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' N.A.A.C.P. v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325, 338 (1964); Zwickler v. Koota, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444, 451 (1967). The 'crucial question' in each case is whether the statute or ordinance 'sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments.' Grayned v. Rockford, 408 U.S. 104, 114-115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222, 231, (1972). See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970). Laws which by their broad or vague language leave to the police unfetered discretion in enforcement are invalid, particularly when their potential for use in the suppression of first amendment rights is great. See, e.g., Papachristou v. Jacksonville, 405 U.S. 156, 168, 92 S.Ct. 839, 846, 31 L.Ed.2d 110, 119 (1972); Edwards v. South Carolina, 372 U.S. 229, 237, 83 S.Ct. 680, 684, 9 L.Ed.2d 697, 703 (1963). 'Such a statute does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.' Cox v. Louisiana, 379 U.S. 536, 579, 85 S.Ct. 466, 469, 13 L.Ed.2d 471, 501 (1965) (Black J., concurring); accord, Shuttlesworth v. Birmingham, 382 U.S. 87, 90, 86 S.Ct. 211, 213, 15 L.Ed.2d 176, 179 (1965). It is against this backdrop of constitutional vagueness and overbreadth law that the facial validity of RSA 609-A:1 II (Supp.1972) must be tested.

The essence of the defendants' claim is that the unlawful assembly proscription here in issue, rendering unlawful 'the assembly of two or more persons to do an unlawful act,' is too susceptible for use by the police as a ready vehicle for the suppression of the expression of unpopular views by demonstrators and other 'assemblies'. See, e.g., Edwards v. South Carolina, supra. Relying largely upon Landry v. Daley, 280 F.Supp. 938, 955 (N.D.Ill.1968) (three-judge court), rev'd on other grounds sub nom. Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971), which invalidated Illinois' identical unlawful assembly provision, the defendants specifically contend that the phrase 'unlawful act' can too easily be read to include unlawful civil acts such as torts, zoning ordinance violations, and contract breaches. It is urged that the inclusion within the prohibition of any and all civil and criminal infractions no matter how innocuous renders the statute void for vagueness and overbreadth.

We do not consider the Landry case apposite to our situation. In that case a federal court placed its own construction on the phrase 'unlawful act' in the absence of an interpretation by the Illinois courts. Our task as a State court is to determine the meaning of the phrase as intended by our legislature. E.g., Frizzell v. Charlestown, 107 N.H. 286, 220 A.2d 742 (1966); Chagnon v. Union-Leader Co., 104 N.H. 472, 190 A.2d 721 (1963). From discussions on this statute in both the house and the senate, it is clear that RSA 609-A:1 II (Supp.1972) was intended to discourage and punish participants in the type of violent and destructive riots which had occurred at Hampton Beach shortly before the bill was introduced. See N.H.S. Jour. 854-58 (1965); N.H.H. Jour. 1041-42 (1965). There was certainly no intention to hinder peaceable assemblies, nor any indication in the debates that unlawful civil acts were contemplated in the phrase 'unlawful acts'. See id. We therefore conclude that only assemblies for the purpose of committing unlawful criminal acts were intended to be proscribed by RSA 609-A:1 II (Supp.1972), and we so construe the statute. Rollins v. Shannon, 292 F.Supp. 580, 590 (E.D.Mo.1968) (three-judge court), vacated on other grounds, 401 U.S. 988, 91 S.Ct. 1235, 28 L.Ed.2d 527 (1971); see Mixon v. State, 226 Ga. 869, 178 S.E.2d 189 (1970). This interpretation of the words 'unlawful act' in RSA 609-A:1 II (Supp.1972) cures any vagueness which may have inhered in these words since the conduct prohibited is clear, to wit, assemblies to do criminal acts.

Nor are the words 'to do' vague or uncertain. A basic weakness in the Landry v. Daley rationale is the premise that 'the language apparently would make the act of assembling to contemplate or consider 'unlawful' conduct a crime . . .' 280 F.Supp. 938, 955. This of course a state cannot do. E.g., Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). But even the words of the statute, assemblies 'to do' unlawful acts, belie such a construction, as does the legislative history. The purpose of this section of the mob action statute was to proscribe the assembly of persons for the specific purpose of engaging in 'imminent lawless action'. Id.; see N.H.H. Jour. 1041 (1965). The underlying purpose of section II was to give the police a tool to 'nip' riots 'in the bud'. N.H.S. Jour. 855 (1965); see State v. Woolman, 84 Utah 23, 39, 33 P.2d 640, 647 (1934); Rollins v. Shannon supra. There is no 'bud' to a riot or other crime until the assembled group stops talking about the advisability of committing the crime and begins preparing for it. When a riot is imminent, the very act of assembling by a group of persons intent on riotous behavior is the act of preparation sought to be prevented. In a peaceful protest situation, the initial act of assembling at a lawful place and time will ordinary not fall within the statutory proscription, for the threatened criminal action must be real, immediate and probable. See Owens v. Commonwealth, 211 Va. 633, 179 S.E.2d 477 (1971). See generally Note, Regulation of Demonstrations 80 Harv.L.Rev. 1773 (1967); Annot. What Constitutes Offense of Unlawful Assembly, 71 A.L.R.2d 875 (1960). The State's analysis is correct that the statute permits prosecution only when a crowd intentionally embarks on concerted criminal action. Peaceable assemblies are thus not proscribed, even though there may be some minor, incidental breaches of the law by some of the...