State v. Bartlett

• Decision Date: 06 October 1970
• Docket Number: No. 137-69,137-69
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Joseph N. BARTLETT.

Page 168

270 A.2d 168

128 Vt. 618

STATE of Vermont v. Joseph N. BARTLETT.

No. 137-69.

Supreme Court of Vermont.

Oct. 6, 1970.

Patrick J. Leahy, State's Atty., for the State.

J. William O'Brien, Burlington, for Vermont Human Life Assn., Inc., amicus curiae.

Joseph S. Wool and William C. Kittell, Burlington, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KEYSER, Judge.

The petitioner pleaded guilty in Chittenden County Court to two charges of procuring an abortion in violation of 13 V.S.A. § 101 and was sentenced to serve a term of three to five years in state prison on each conviction. Subsequently, the respondent filed a petition under the Post Conviction Relief Act, 13 V.S.A. §§ 7131-7137, for review of the judgments. He seeks to have the trial court vacate and set aside the judgments and discharge him from custody on the ground that he has been denied his constitutional rights and the court below was without jurisdiction to impose sentence upon him. The court below dismissed the petition on the ground that it conclusively appeared therein that the petitioner was not entitled to relief under the laws of Vermont, the result of which was petitioner's appeal to this Court.

The petitioner attacks his conviction for violation of the abortion statute on three grounds. He contends that it violates the due process clause of the Constitution of the United States because (1) it infringes upon the mother's right to life, and (2) her right to choose whether to bear children. (3) He also claims that the statute is void for vagueness. There is no claim that the petitioner was denied any of the elements of procedural due process at his trial so as to make his conviction constitutionally invalid.

The statute, 13 V.S.A. § 101, reads:

'A person who wilfully administers, advises or causes to be administered anything to a woman pregnant, or supposed by such person to be pregnant, or employs or causes to be employed any means with intent to procure the miscarriage of such woman, or assists or counsels therein, unless the same is necessary to preserve her life, if the woman dies in consequence thereof, shall be imprisoned in the state prison not more than twenty years nor less than five years. If the woman does not die in consequence thereof, such person shall be imprisoned in the state prison not more than ten years nor less than three years. However, the woman whose miscarriage is caused or attempted shall not be liable to the penalties prescribed by this section.'

The first information charged that the petitioner wilfully assisted and caused to be administered the means necessary to procure a miscarriage on a named woman then pregnant, with intent to procure the miscarriage of such woman when same was not necessary to preserve her life, in violation of Chapter 3 Section 101 Title 13 V.S.A. The second information charged the identical offense in the same language except that the named female was a different person who was 'supposed to be pregnant by the said Joseph N. Bartlett.'

The petitioner was not charged in either instance with performing an abortion but with assisting in the procurement of an abortion. He admits in his brief that he was a go-between by finding persons who needed assistance. And here the petitioner took each female to Montreal, Canada, in order to have the abortions performed.

In this posture of the case it is clear that the petitioner is not the person upon whom the claimed constitutional rights are directly bestowed. He admits this in his argument but claims that although his rights lack originality, he is entitled to vindicate his actions by asserting, and having the benefit of, the constitutional rights of the pregnant females named in the information. On the other hand, the State argues that the petitioner stands in a different position than the expectant mothers.

The respondent contends that the statute is unconstitutional to women generally, and, therefore, is unconstitutional also as to him. He argues that the statute is unconstitutionally vague, his claim being based on the statutory language 'unless the same (abortion) is necessary to preserve her (mother's) life.' Thus, at the threshold we are met with the issue of whether the statute is unconstitutional as to the petitioner.

In construing a statute, the fundamental rule is that the real meaning and purpose of the Legislature is to be ascertained, and if a fair and reasonable construction discloses it, the statute is to be given effect. Abbadessa v. Tegu, 121 Vt. 496, 498, 160 A.2d 876; Sorrell v. White, 103 Vt. 277, 280-281, 153 A. 359.

There is, of course, a presumption in favor of constitutionality, and the invalidity of a legislative act must be clear before it can be declared unconstitutional. United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561, rehearing denied 372 U.S. 961, 83 S.Ct 1011, 10 L.Ed.2d 13; Vt. Woolen Corp. v. Wackerman, 122 Vt. 219, 167 A.2d 533. It is not to be adjudged unconstitutional without clear and irrefragable evidence that it infringes the paramount law. In Re Squires, 114 Vt. 285, 287, 44 A.2d 133.

However, under the long established rule where the meaning of the statute is plain, there is no necessity for construction and the courts must enforce the statute according to its terms. Leno v. Meunier, 125 Vt. 30, 33, 209 A.2d 485; City of Rutland v. Keiffer, 124 Vt. 357, 364, 205 A.2d 400.

When a statute is attacked on vagueness grounds under the due process clause of the Fifth or Fourteenth Amendments of the Federal Constitution, the theory of the attack is that the party against whom the statute is to be applied did not receive fair warning that his conduct was prohibited. Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886, 892. The United States Supreme Court declared in that case that-'The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices,' citing Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322, 328. See also United States v. National Dairy Products Corp., supra, in which the Court said-'In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged.' (372 U.S. at 33, 83 S.Ct. at 598, 9 L.Ed.2d at 565, 566). It has also said-'No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890; Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 86 S.Ct. 518, 15 L.Ed.2d 447, 450.

In State v. Giant of St. Albans, Inc., (Vt., 1970) 268 A.2d 739, we held that the constitutional standard is that a criminal statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden, citing United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989. The constitutional test is satisfied if, upon reasonable inquiry, a person of ordinary intelligence is made aware of the nature of the prohibitions. Ibid, citing McGowan v. Maryland, 366 U.S. 420, 428, 81 S.Ct. 1101, 6 L.Ed.2d 393.

Therefore, if the petitioner's 'conduct was such that he could clearly tell that it was prohibited by the statute, it is immaterial that the statute may be broadly phrased and that another could be misled.' Standing to Assert Constitutional Jus Tertii, 71 Yale L.J. 617 (1962).

Moreover, where wilfulness is an essential element of the crime, as it is under our statute, one convicted cannot allege that the statute was vague. 71 Yale L.J. 617, citing United States v. Ragen, 314 U.S. 513, 62 S.Ct. 374, 86 L.Ed. 383. In that case the Court states at page 524, 62 S.Ct. page 379 that 'A mind intent upon wilful evasion is inconsistent with surprised innocence.' Here, by his guilty plea, the petitioner admitted the wilfulness of his acts.

The statement made by the Court in Sanitary Vendors, Inc. v. Bryne, 40 N.J. 157, 190 A.2d 876, 881, 96 A.L.R.2d 948, 955, is quite apropos here-'that legislation should always give fair warning to those affected as to what it intends to outlaw. There is, of course, no suggestion that the plaintiff in the instant case lacked warning that its activity was proscribed.'

Reduced to its simplest terms, the petitioner was charged in each complaint with wilfully assisting the procurement of an abortion of a named pregnant female. The language of the statute which is the basis of the complaint expresses the clear meaning and purpose of the statute. Its terms indicate with certitude what the Legislature intended by its enactment of the statute and informs a person what conduct it...