State v. Aver

• Decision Date: 05 November 1987
• Docket Number: No. 53390-3,53390-3
• Citation: 109 Wn.2d 303,745 P.2d 479
• Parties: The STATE of Washington, Respondent, v. Reva B. AVER, Johnny Wayne Baranski, Meredith L. Bliss, Pamela Bouiss, Rahmana Boyce, Deborah Bush, Katherine Caple, Joseph Cotter, Wendy Garbart, Ann L. Glick, Ann R. Harvey, Bill Hewitt, Judy Hopkins, Paul Libby, Helen Lynn, Carla Mann, William Neuman, Steve Patapoff, Laura A. Powell, Zante River, Ada L. Sanchez, Schwiebert John, Peggy Scolnick, Joel L. Shapiro, Norman Soloman, Kirsten Sogge, Grace Weinstein, Joyce St. Arnaud, Guy D. Burton, Jody L. Hoffer, Petitioners.
• Court: Washington Supreme Court

Page 303

109 Wn.2d 303

745 P.2d 479

The STATE of Washington, Respondent, v. Reva B. AVER, Johnny Wayne Baranski, Meredith L. Bliss Pamela Bouiss, Rahmana Boyce, Deborah Bush, Katherine Caple Joseph Cotter, Wendy Garbart, Ann L. Glick, Ann R. Harvey Bill Hewitt, Judy Hopkins, Paul Libby, Helen Lynn, Carla Mann, William Neuman, Steve Patapoff, Laura A. Powell, Zante River, Ada L. Sanchez, Schwiebert John, Peggy Scolnick, Joel L. Shapiro, Norman Soloman, Kirsten Sogge, Grace Weinstein Joyce St. Arnaud, Guy D. Burton, Jody L. Hoffer, Petitioners.

No. 53390-3.

Supreme Court of Washington, En Banc.

Nov. 5, 1987.

Morse & Bratt, William D. Robison, Vancouver, for petitioners.

Meredith L. Bliss, pro se.

Arthur D. Curtis, Clark County Pros., Mr. Thomas C. Duffy, Deputy Pros., Vancouver, for respondent.

GOODLOE, Justice.

Defendants (petitioners) raise various challenges to their convictions under RCW 81.48.020, which makes it illegal to wilfully obstruct or delay a lawfully operated train. Defendants' main challenge is that the term "lawfully operated" renders RCW 81.48.020 unconstitutionally vague. We uphold the statute and affirm their convictions.

The facts are not disputed. In Clark County District Court a jury convicted defendants of obstructing or delaying a train in violation of RCW 81.48.020. The train which defendants were convicted of obstructing is often referred to as a "White Train" or "Death Train" and is believed to have been carrying nuclear warheads to the naval submarine base at Bangor, Washington. The arrests occurred as the train attempted to pass through Vancouver, Washington. Approximately 200 to 250 people were protesting the train's passage. A number of the protesters impeded the train's passage by getting onto the train tracks. None of the defendants had permission to be on the Burlington Northern tracks. After three warnings, the Vancouver City Police removed and arrested any person who refused to move off of the tracks.

The Clark County Superior Court affirmed the defendants' convictions. The court held that RCW 81.48.020 is not unconstitutionally vague because the statute provides sufficient minimal guidelines such that law enforcement personnel or other persons of reasonable understanding could determine what is proscribed. The Court of Appeals accepted discretionary review pursuant to RAP 2.3(d). Thereafter, the matter was certified to this court pursuant to RCW 2.06.030. Some of the defendants are represented by counsel; others represent themselves.

I

We address whether RCW 81.48.020 is void for vagueness. RCW 81.48.020 provides:

Every person who shall wilfully obstruct, hinder or delay the passage of any car lawfully operated upon any railway, shall be guilty of a misdemeanor.

(Italics ours.)

Defendants argue that the unconstitutionality of RCW 81.48.020 arises from the patent ambiguity of the term "lawfully operated". The challenged term is not defined by statute or court interpretation. Thus, defendants contend that a criminal conviction under the statute necessarily involves an arbitrary or ad hoc determination of the prohibited conduct. Defendants reason that because the definition of an element of the crime must be supplied by guesswork, the statute is clearly void. Pro se defendant further submits that the trial court improperly excised the words "lawfully operated" from the statute. The court ruled that the statute was not vague because it clearly prohibited "obstructing, hindering or delaying of a railway car." Clerk's Papers, at 37.

To assist in determining whether a statute is void for vagueness, the following rules of statutory construction are relevant. "A statute is void for vagueness under the Fourteenth Amendment if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application." Myrick v. Board of Pierce Cy. Comm'rs, 102 Wash.2d 698, 707, 677 P.2d 140, 687 P.2d 1152 (1984); see also Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). "[I]f men of ordinary intelligence can understand a penal statute, notwithstanding some possible areas of disagreement, it is not wanting in certainty." State v. Maciolek, 101 Wash.2d 259, 265, 676 P.2d 996 (1984).

In a constitutional challenge a statute is presumed constitutional unless its unconstitutionality appears beyond a reasonable doubt. Seattle v. Shepherd, 93 Wash.2d 861, 865, 613 P.2d 1158 (1980); Maciolek, 101 Wash.2d at 263, 676 P.2d 996. In a facial challenge, as here, we look to the face of the enactment to determine whether any conviction based thereon could be upheld. Shepherd, 93 Wash.2d at 865, 613 P.2d 1158. A statute is not facially vague if it is susceptible to a constitutional interpretation. State v. Miller, 103 Wash.2d 792, 794, 698 P.2d 554 (1985). The burden of proving impermissible vagueness is on the party challenging the statute's constitutionality. Shepherd, 93 Wash.2d at 865, 613 P.2d 1158. Impossible standards of specificity are not required. Hi-Starr, Inc. v. Liquor Control Bd., 106 Wash.2d 455, 465, 722 P.2d 808 (1986).

No Washington court has directly ruled on the constitutionality of RCW 81.48.020. However, defendants urge that our decisions in previous cases dictate that we hold the challenged statute to be unconstitutional. See, e.g., State v. Richmond, 102 Wash.2d 242, 683 P.2d 1093 (1984); State v. Hilt, 99 Wash.2d 452, 662 P.2d 52 (1983); State v. White, 97 Wash.2d 92, 640 P.2d 1061 (1982); Seattle v. Rice, 93 Wash.2d 728, 612 P.2d 792 (1980); Bellevue v. Miller, 85 Wash.2d 539, 536 P.2d 603 (1975); Seattle v. Drew, 70 Wash.2d 405, 423 P.2d 522 (1967).

In Richmond, 102 Wash.2d at 244, 683 P.2d 1093, for example, the challenged statute provided in pertinent part:

(1) Every person who: ...

(b) Wilfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his or her child or stepchild ... shall be guilty of the crime of family desertion or nonsupport.

Citing former RCW 26.20.030(1)(b). We held this statute to be unconstitutionally vague because the "without lawful excuse" element had not been sufficiently clarified by other statute or case authority. Richmond, at 243, 683 P.2d 1093. Similarly, we held in Hilt that Washington's bail jumping statute was unconstitutional. The scrutinized phrase in Hilt was "lawful excuse". We stated:

The bail jumping statute is ... deficient in terms of providing guidelines to the meaning of lawful excuse. The phrase is nowhere defined and predicting its potential application would be a guess, at best. We therefore hold that the bail jumping statute is unconstitutionally vague.

Hilt, 99 Wash.2d at 455, 662 P.2d 52. In White, we struck down a statute as vague which made it "a misdemeanor to 'obstruct a public servant' by failing, 'without lawful excuse', to provide true information 'lawfully required' of an individual by a 'public servant'." White, 97 Wash.2d at 95, 640 P.2d 1061. Defendants argue that the infirmity in RCW 81.48.020 compares to the above invalidated statutes.

The challenged statute is distinguishable from those found vague in the aforementioned cases. In Richmond, Hilt, and White the challenged "lawful excuse" phrase was directed towards the activities of the accused. As such, the phrase did not provide fair notice of the conduct proscribed and raised the potential of arbitrary arrests and convictions. Here, in contrast, no such confusion exists. The term "lawfully operated" is directed not toward the activities of the accused. Rather, RCW 81.48.020 forbids a definite course of conduct--wilfully obstructing, hindering or delaying the passage of a train. The proscribed activity being clearly stated, the defendants cannot claim constitutional confusion as to the lawfulness of the operation of the train. We will not strain to inject doubt into the meaning of a statute. Our plain reading of RCW 81.48.020 fails to impress us of its vagueness.

Our decision here comports with our recent decision in State v. Miller, 103 Wash.2d 792, 698 P.2d 554 (1985). In Miller we upheld a statute which provided that: "it is a class C felony to assault with intent to resist a lawful arrest or detention." Miller, at 793-94, 698 P.2d 554. We held this language provided adequate notice. Miller, at 794, 698 P.2d 554. RCW 81.48.020 is no less clear to persons of reasonable understanding than the statute found in Miller.

We find that RCW 81.48.020 is not unconstitutionally vague. The statute does not require one to guess at its meaning. It is sufficiently clear to prevent arbitrary or ad hoc determinations of criminality and establishes minimum guidelines to govern law enforcement. See Richmond, 102 Wash.2d at 244, 683 P.2d 1093.

II

We now turn to defendants' remaining contentions. Defendants argue that the giving of instruction 5 constituted prejudicial error. Instruction 5 provided:

"Lawfully" means with the permission of and under the authority of the railroad company.

Clerk's Papers, at 74. "Jury instructions are sufficient if they '(1) permit each party to argue his theory of the case, (2) are not misleading, and (3) when read as a whole, properly inform the trier of fact of the applicable law.' " Tiderman v. Fleetwood Homes of Washington, 102 Wash.2d 334, 337-38, 684 P.2d 1302, 45 A.L.R. 4th 743 (1984).

Defendants argue that instruction 5 is not a correct statement of the law. Defendants assert that the trial court's definition was without reason or authority and ignored the obvious meaning of the term "lawfully operated". Therefore, it is argued that the giving of instruction 5 was manifestly unreasonable and constituted an abuse of discretion. See Davis v. Globe Mach. Mfg. Co., 102 Wash.2d 68, 684 P.2d 692 (1984). Defendants argue that a reasonable person would expect that a "lawfully operated" train at least does not violate statutory law. See Mountlake Terrace v. Stone, 6...