State v. Bitt, 17722

• Citation: 118 Idaho 584,798 P.2d 43
• Decision Date: 13 September 1990
• Docket Number: No. 17722,17722
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Myron BITT, Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 43

798 P.2d 43

118 Idaho 584

STATE of Idaho, Plaintiff-Appellant, v. Myron BITT, Defendant-Respondent.

No. 17722.

Supreme Court of Idaho.

Sept. 13, 1990.

[118 Idaho 585] Jim Jones, Atty. Gen., and Deputy Atty. Gen. Myrna A.I. Stahman, argued, Boise, for plaintiff-appellant.

Jeanette Wolfley, Fort Hall, for defendant-respondent.

BISTLINE, Justice.

On the night of April 22, 1987, a Pocatello police officer observed the defendant Myron Bitt banging his fists against the front door of a closed convenience store. When the officer pulled his patrol car into the store's parking lot, Bitt attempted to hide behind one of the store's gas pumps. Bitt identified himself when asked to do so, but Bitt could not produce any written identification. When asked by the officer why he hid behind the gas pump, Bitt did not respond and attempted to leave. The officer arrested Bitt.

Myron Bitt was charged by misdemeanor complaint with violating Pocatello City Ordinance § 9.16.070. Bitt moved before trial to dismiss the complaint against him on the ground that the ordinance is facially unconstitutional. The magistrate judge dismissed the complaint, holding that the ordinance is facially unconstitutional and void for vagueness. No trial was held. The district judge affirmed the holding of the magistrate judge. For the reasons stated in this opinion, we affirm the district judge's endorsement of the magistrate's ¹ dismissal of the misdemeanor complaint, on the ground that Pocatello City Ordinance § 9.16.070 is void for vagueness. The interpretation of an ordinance is a question of law, and we therefore exercise free review. City of Lewiston v. Mathewson, 78 Idaho 347, 351, 303 P.2d 680, 682 (1956) ("The construction of an ordinance is a question of law for determination by the court"). Part I of this opinion discusses the void for vagueness test, and Part II analyzes the Pocatello ordinance.

I. THE VOID FOR VAGUENESS TEST

An ordinance is void for vagueness when it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" and permits arbitrary or discriminatory enforcement. See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). The basis for this rule of law is that "[all persons] 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 (1939) (footnote omitted). While courts recognize that "[i]n most English words and phrases there lurk uncertainties," Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975) (quoting Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945)), a statute written in terms so ambiguous that persons "of common intelligence must necessarily guess at its meaning and differ as to its application" is unconstitutionally vague. Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See also Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). A more recent pronouncement of the reasons for the void for vagueness doctrine is included in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972):

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary

[118 Idaho 586] and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application

Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-299 (footnotes omitted).

Grayned has been cited with approval by this Court. In Voyles v. City of Nampa, 97 Idaho 597, 548 P.2d 1217 (1976), we explained:

The due process clause of the fourteenth amendment to the Constitution of the United States requires that a city ordinance must be definite and certain in its statement of prohibited conduct to enable a person of ordinary intelligence who reads the ordinance to understand what activity is proscribed and govern his actions accordingly. E.g., Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). The Constitution of the State of Idaho also requires that city ordinances demonstrate a definiteness and certainty sufficient to permit a person to conform his conduct thereto. Idaho Const. Art. I, § 13; City of Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680 (1956). See also State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952); State v. Musser, 67 Idaho 214, 176 P.2d 199 (1946). An ordinance which fulfills the requirements of certainty and definiteness still may be constitutionally infirm if its prohibition is overbroad, restricting constitutionally protected conduct. [Citation omitted.]

Voyles, 97 Idaho at 599, 548 P.2d at 1219. See also State v. Newman, 108 Idaho 5, 12, 696 P.2d 856, 863 (1985).

While the reasons for such a doctrine may be obvious, the steps in a test for vagueness have never been presented in a clear and unambiguous manner by the United States Supreme Court. See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960). ² Moreover, the steps announced by the federal Supreme Court do not quickly and easily translate into our state system of jurisprudence. Unlike the posture of the cases before the United States Supreme Court in Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), and Village of Hoffman Estates v. Flipside, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), where no prosecution was pending and no showing of bad-faith enforcement or other special circumstances had been made, an earlier case which was before us in State v. Newman, 108 Idaho 5, 696 P.2d 856 (1985), and the case before us now both involve active prosecutions. This Court's attempt at a translation of the federal vagueness test in State v. Newman will now be clarified.

Newman relies upon Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). The question presented in Steffel was "whether declaratory relief is precluded when a state prosecution has been threatened, but is not pending, and a showing of bad-faith enforcement or other special circumstances has not been made." Steffel, 415 U.S. at 454, 94 S.Ct. at 1213. The test Steffel applied to determine if declaratory relief is warranted is extremely difficult for the party requesting declaratory judgment to satisfy:

Indeed, the State's concern with potential interference in the administration of its criminal laws is of lesser dimension when an attack is made upon the constitutionality of a state statute as applied. A declaratory judgment of a lower federal court that a state statute is invalid in toto--and therefore incapable of any valid

[118 Idaho 587] application--or is overbroad or vague--and therefore no person can properly be convicted under the statute until it is given a narrowing or clarifying construction, [citations omitted]--will likely have a more significant potential for disruption of state enforcement policies than a declaration specifying a limited number of impermissible applications of the statute

Steffel, 415 U.S. at 474, 94 S.Ct. at 1223. This Court in Newman, in a footnote, quoted just a portion of the test announced in Steffel. 108 Idaho at 11 n. 7, 696 P.2d at 861. Newman also cited with approval to another United States Supreme Court case, Village of Hoffman Estates v. Flipside, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), which involved another "pre-enforcement facial challenge" in federal court of a city ordinance, as the first sentence of the Supreme Court's opinion in Flipside states.

The reasons for having a hard test for a party challenging a state statute or city ordinance in federal court through a declaratory judgment proceeding include considerations of federalism, comity, and the abstention doctrine. States should be allowed to interpret and place "judicial gloss" on a state statute without this interpretation process being pre-empted by a binding judgment in federal court. Thus, Steffel "provides no authority for the granting of any injunctive relief nor does it provide authority for the granting of any relief at all when prosecutions are pending." 415 U.S. at 479, 94 S.Ct. at 1226 (Rehnquist, J., concurring). In other words, the relief provided by a federal court in these instances will be minor, even though the barrier to that relief is great:

A declaratory judgment is simply a statement of rights, not a binding order supplemented by continuing sanctions. State authorities may choose to be guided by the judgment of a lower federal court, but they are not compelled to follow the decision by threat of contempt or other penalties.

Steffel, 415 U.S. at 482, 94 S.Ct. at 1227 (Rehnquist, J., concurring).

Contrary to our statement of the federal test in Newman, the federal Supreme Court has recognized that a vagueness challenge is more readily acknowledged if the statute challenged carries criminal penalties. In Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), the United States Supreme Court case that struck down a criminal statute analogous to the Pocatello ordinance, Justice White in dissent wrote:

None of our cases ...