State v. Asmussen

• Decision Date: 20 August 2003
• Docket Number: No. 22632.,22632.
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. David J. ASMUSSEN, Defendant and Appellee.

668 N.W.2d 725

2003 SD 102

STATE of South Dakota, Plaintiff and Appellant, v. David J. ASMUSSEN, Defendant and Appellee.

No. 22632.

Supreme Court of South Dakota.

Argued May 28, 2003.

Decided August 20, 2003.

Rehearing Denied September 29, 2003.

Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, for plaintiff and appellant.

Rick A. Ribstein, Donald M. McCarty of McCann, Ribstein & Hogan, Brookings, South Dakota, for defendant and appellee.

MEIERHENRY, Justice.

[¶ 1.] The State filed a complaint against David J. Asmussen (Asmussen) for three counts of stalking. The second count of the complaint charged that Asmussen committed the public offense of stalking (SDCL 22-19A-1(3) and 22-6-2(1)) by willfully, maliciously, and repeatedly harassing Pamela Dunn by means of verbal, electronic, mechanical, telegraphic, or written communications. Asmussen filed a motion to dismiss count II of the complaint asserting that SDCL 22-19A-1(3) is facially unconstitutional. The trial court granted Asmussen's motion and dismissed count II of the complaint finding that SDCL 22-19A-1(3) is overbroad on its face and unconstitutionally vague in violation of both the First and Fourteenth Amendments of the United States Constitution and the South Dakota Constitution, Article VI § 2. No fact finding hearing or trial took place. The State's intermediate appeal from the order was granted on the following issues:

1. Whether SDCL 22-19A-1(3) is unconstitutionally overbroad in violation of the First Amendment to the United States Constitution.

2. Whether SDCL 22-19A-1(3) is unconstitutionally vague in violation of the Fifth and Fourteenth Amendment to the United States Constitution and Article VI, § 2 of the South Dakota Constitution.

STANDARD OF REVIEW

[¶ 2.] Challenges to the constitutionality of a statute are reviewed de novo. State v. Allison, 2000 SD 21, ¶ 5, 607 N.W.2d 1, 2. This Court recognizes a strong presumption that a statute is constitutional. Id. In order to prevail, a challenger must refute this presumption beyond a reasonable doubt. State v. McGill, 536 N.W.2d 89, 94. "While legislative acts are presumed to be constitutional, that presumption disappears when the unconstitutionality of the act is, `clearly and unmistakenly shown and there is no reasonable doubt that it violates constitutional principles.'" South Dakota Educ. Association/NEA By and Through Roberts v. Barnett, 1998 SD 84, ¶ 22, 582 N.W.2d 386, 392 (quoting Poppen v. Walker, 520 N.W.2d 238, 241 (S.D.1994)).

DECISION

1. Whether SDCL 22-19A-1(3) is unconstitutionally overbroad in violation of the First Amendment to the United States Constitution.

[¶ 3.] The State of South Dakota argues that Asmussen lacks standing to raise the issue of whether the statute is unconstitutionally vague and overbroad.

Though interrelated, the concepts of vagueness and overbreadth are conceptually distinct doctrines. Vagueness is usually associated with the right to due process found in the Fifth and Fourteenth Amendments, whereas overbreadth is concerned with the First Amendment guarantees of free speech.

State v. Hauge, 1996 SD 48, ¶ 5, 547 N.W.2d 173, 175. First, we will address whether Asmussen has standing to challenge the constitutionality of the statute under the doctrine of overbreadth. A statute is overbroad when its language sanctions conduct which the state is not entitled to regulate. An overbroad statute "not only forbids conduct constitutionally subject to proscription, but also sweeps within its ambit those actions ordinarily deemed to be constitutionally protected." People ex rel P.B., 339 N.W.2d 121, 123 (S.D.1983). Asmussen does not claim that he was engaging in constitutionally protected activity. Asmussen challenges the provision of the statute under which he was charged as unconstitutionally overbroad. Normally, a facial challenge to a statute is not allowed unless the challenger's own conduct involves constitutionally protected expression. An exception to this is when a party challenges a statute based on the doctrine of overbreadth. The doctrine of overbreadth allows the court to consider the effect of a statute on third parties, regardless of whether the challenger's right of free expression was violated. The United States Supreme Court recently reiterated the basis of allowing a facial challenge to a statute based on the First Amendment doctrine of overbreadth:

The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges. (citation omitted). The showing that a law punishes a "substantial" amount of protected free speech, "judged in relation to the statute's plainly legitimate sweep," Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908[, 2918], 37 L.Ed.2d 830[, 842] (1973), suffices to invalidate all enforcement of that law, "until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression." Id. at 613[, 93 S.Ct. at 2916, 37 L.Ed.2d at 840-41] (citations omitted).

We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or "chill" constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions. (citations omitted). Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, Dombrowski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22[, 28-29] (1965) —harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.

Virginia v. Hicks, ___ U.S.___, ___, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148, 157 (2003). Courts acknowledge that a litigant has standing to challenge a statute if the court can predict or assume "that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick, 413 U.S. at 612, 93 S.Ct. at 2916, 37 L.Ed.2d at 840.

[¶ 4.] The relevant portions of the law which Asmussen challenges are as follows:

Any person:

(3)[w]ho willfully, maliciously, and repeatedly harasses another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication; is guilty of the crime of stalking. SDCL 22-19A-1(3).

....

For purposes of this chapter, "harasses" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. SDCL 22-19A-4.

For purposes of this chapter, "course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct." SDCL 22-19A-5.

For purposes of the standing issue, the language of the statute with its criminal sanctions could conceivably cause others to refrain from constitutionally protected speech. Asmussen, therefore, has standing to challenge the statute on its face even though his speech or conduct may not be constitutionally protected.

[¶ 5.] In addressing the merits of the challenge, we recognize that to invalidate a law as overbroad is "strong medicine" because it has the effect of suspending enforcement of the entire law. New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113, 1130 (1982) (citing Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916, 37 L.Ed.2d at 840). The doctrine is employed with hesitation and "only as a last resort." Id. The effect of suspending enforcement of the entire law could result in preventing enforcement in situations of constitutionally unprotected speech or, more importantly, in situations of constitutionally unprotected conduct. Id. For a finding of overbreadth, the law's application to protected speech must be "real" and "substantial," not only in an absolute sense, but also relative to the scope of the law's plainly legitimate application. Id. To strike a law for overbreadth it must reach "a substantial number of impermissible applications." Id. at 771, 102 S.Ct. at 3362, 73 L.Ed.2d at 1132.

[¶ 6.] Under the overbreadth doctrine, Asmussen has the burden of establishing "`from the text of [the law] and from actual fact,' that substantial overbreadth exists." Hicks, ___ U.S. at ___, 123 S.Ct. at 2198, 156 L.Ed.2d at 159 (quoting New York State Club Ass'n., Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 2234, 101 L.Ed.2d 1, 17 (1988)

). In order to meet that burden, Asmussen must show that the law's application to constitutionally protected speech is "real" and "substantial" in an absolute sense and in relation to the scope of the law's plainly legitimate application.

[¶ 7.] An analysis of the law's constitutionality begins by examining the text of the statute to determine its application and scope. First of all, it is apparent the legislature intended to exclude the law's application to "constitutionally protected activity." SDCL 22-19A-5. Although the statute prohibits harassment by "means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication," it is not directed at freedom of expression normally protected by the First Amendment. Cf. State v. Springer-Ertl, 2000 SD 56, 610 N.W.2d 768

; State v. Crelly, 313 N.W.2d 455 (S.D.1981). The scope of the statute does not sweep free expression of ideas into its scope. Furthermore, the statute is limited in scope to a willful, malicious, and repeated course of conduct specifically directed at another person. SDCL 22-19A-1(3). The statute further limits the course of conduct to conduct serving no legitimate purpose. SDCL 22-19A-4. Also there is no showing that the law would reach substantial...