State v. Christensen

• Citation: 439 N.W.2d 389
• Decision Date: 09 May 1989
• Docket Number: No. C1-88-2065,C1-88-2065
• Court: Court of Appeals of Minnesota
• Parties: STATE of Minnesota, Appellant, v. Ann Brooke CHRISTENSEN, Respondent.

Page 389

439 N.W.2d 389

STATE of Minnesota, Appellant, v. Ann Brooke CHRISTENSEN, Respondent.

No. C1-88-2065.

Court of Appeals of Minnesota.

May 9, 1989.

Review Denied June 6, 1989.

Syllabus by the Court

The trial court erred in finding Minn.Stat. §§ 152.093 and 152.01, subd. 18 (1986) unconstitutional on their face and as applied due to vagueness.

Hubert H. Humphrey, III, Atty. Gen., Louise T. Dobbe, Sp. Asst. Atty. Gen., St. Paul, and Roger J. Fellows, Asst. City Atty. City of Brooklyn Park, Minneapolis, for appellant.

Larry B. Leventhal, Leventhal and Associates, Minneapolis, for respondent.

Randall D.B. Tigue, Minneapolis, for amicus curiae, Kawaljit Bhatia.

Heard, considered and decided by LANSING, P.J., and FOLEY and SCHUMACHER, JJ.

OPINION

FOLEY, Judge.

The state appeals from the trial court's dismissal of criminal charges due to its finding that the charging statute is unconstitutionally vague on its face and as applied. We reverse and remand.

FACTS

Respondent Ann Brooke Christensen was charged with the misdemeanor offense of possessing drug paraphernalia for delivery in violation of Minn.Stat. § 152.093 (1986), which provides:

It is unlawful for any person knowingly or intentionally to deliver drug paraphernalia or knowingly or intentionally to possess or manufacture drug paraphernalia for delivery. Any violation of this section is a misdemeanor.

Drug paraphernalia is defined as

all equipment, products, and materials of any kind, except those items used in conjunction with permitted uses of controlled substances under this chapter or the Uniform Controlled Substances Act, which are knowingly or intentionally used primarily in (1) manufacturing a controlled substance, (2) injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, (3) testing the strength, effectiveness, or purity of a controlled substance, or (4) enhancing the effect of a controlled substance.

Minn.Stat. § 152.01, subd. 18 (1986).

The charge stems from her operation and ownership of a retail store in Brooklyn Park. The store sells posters, tobacco, records, and items allegedly useful for ingestion of both legal and illegal substances. The establishment is a licensed tobacco retailer.

Pursuant to a warrant, police seized "cocaine kits" (a mirror, razor, spoon, vial, etc. in a small pouch) and other items. Christensen, who was not present during the seizure, was subsequently charged. The trial court granted Christensen's motion to dismiss the complaint due to the unconstitutional vagueness of Minn.Stat. §§ 152.093 and 152.01, subd. 18 on their face and as applied. The state appeals.

ISSUE

Are Minn.Stat. §§ 152.093 and 152.01, subd. 18 unconstitutionally vague on their face and as applied? ¹

ANALYSIS

Construction of a statute is a question of law reviewable de novo by this court. Hibbing Education Association v. Public Employment Relations Board, 369 N.W.2d 527, 529 (Minn.1985). Every legislative enactment comes to this court with a presumption in favor of its constitutionality. Bergmann v. City of Melrose, 420 N.W.2d 663, 667 (Minn.Ct.App.1988). Christensen bore the burden of proving the statute unconstitutional beyond a reasonable doubt. Federal Distillers, Inc. v. State, 304 Minn. 28, 39, 229 N.W.2d 144, 154 (1975) (citing Minneapolis Federation of Teachers Local v. Obermeyer, 275 Minn. 347, 147 N.W.2d 358 (1966)).

In its memorandum, the trial court cited the applicable standard regarding vagueness from High Ol' Times, Inc. v. Busbee, 673 F.2d 1225 (11th Cir.1982). However, it then relied extensively on the analysis used in an Oregon appellate court case. Gaffey v. Babb, 50 Or.App. 617, 624 P.2d 616, rev. denied 291 Or. 117, 631 P.2d 341 (1981). Gaffey relies on another case which was later reversed and the ordinance in issue was later upheld. See Gaffey, 50 Or.App. at 632, 624 P.2d at 625 (citing Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916 (6th Cir.1980), vacated by 456 U.S. 968, 102 S.Ct. 2227, 72 L.Ed.2d 840 (1982), ordinance upheld on appeal after remand, 709 F.2d 534 (1983)).

Furthermore, the trial court's memorandum does not reflect consideration of Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). We hold that Hoffman controls the decision here. Gaffey stands isolated, lacking any precedential value in the light of Record Revolution 's remand due to Hoffman. Gaffey is likewise distinguishable on its facts; the language in the Oregon ordinance is different from that used in the Minnesota statute.

In Hoffman, a pre-enforcement facial challenge case, the Supreme Court upheld a village ordinance restricting sale of drug paraphernalia to those licensed by the city. Id. at 492, 102 S.Ct. at 1190. The ordinance made the sale of paraphernalia "designed or marketed for use with illegal cannabis or drugs" unlawful. Id. at 506, 102 S.Ct. at 1197. The Court held that at least some of the items sold by Flipside (also a retail shop) were covered by the ordinance, and therefore the facial challenge was unavailing. Id. at 500, 102 S.Ct. at 1194.

To sustain a vagueness challenge

the complainant must prove that the enactment is vague " 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.' Such a provision simply has no core."

Hoffman, 455 U.S. at 495 n. 7, 102 S.Ct. at 1191 n. 7 (quoting Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974) (citation omitted)) (emphasis in original); see also State v. Reynolds, 243 Minn. 196, 66 N.W.2d 886 (1954); State v. Moore, 431 N.W.2d 565, 567 (Minn.Ct.App.1988).

All the due process clause requires is fair notice by providing "an ascertainable standard of guilt" sufficient to enable persons of ordinary intelligence to avoid conduct which the law forbids.

High Ol' Times, 673 F.2d at 1229 (citing Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975); Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948)). In its analysis, the Hoffman court relied on the standards for evaluating vagueness announced in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972):

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 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.

Id. at 108-09, 92 S.Ct. at 2298-99 (footnotes omitted); see also State v. McCorvey, 262 Minn. 361, 114 N.W.2d 703 (1962); City of Mankato v. Fetchenhier, 363 N.W.2d 76 (Minn.Ct.App.1985). The Court stated that less precise enactments are more likely to be tolerated in the civil context than in the criminal due to the differences in consequences of imprecision; in any event, absolute precision in drafting is not required. Hoffman, 455 U.S. at 499, 102 S.Ct. at 1193-94; see also, High Ol' Times, 673 F.2d at 1229. Also, a "scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant." Hoffman, 455 U.S. at 499, 102 S.Ct. at 1193. The Hoffman opinion set "important limits on facial constitutional attacks in the drug paraphernalia area." Levas & Levas v. Village of Antioch, Illinois, 684 F.2d 446 (7th Cir.1982).

[A] finding of unconstitutional vagueness cannot be based on uncertainty at the margins, or on a parade of bizarre hypothetical cases: problems of that order can be resolved in challenges to the ordinance as applied.

Id. 455 U.S. at 451.

Applying the above standards, the Hoffman Court determined that the phrase "designed * * * for use" used in the ordinance contained a scienter standard in that

an item that is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer. A business person of ordinary intelligence would understand that this term refers to the design of the manufacturer, not the intent of the retailer or customer.

Id. 455 U.S. at 501, 102 S.Ct. at 1195 (emphasis added). The Hoffman Court also found the phrase "marketed for use" transparently clear in that "it describes a retailer's intentional display and marketing of merchandise." Id. at 502, 102 S.Ct. at 1195. "The standard requires scienter, since a retailer could scarcely 'market' items 'for' a particular use without intending that use." Id. Here, Christensen's employee, a retail clerk, directed the police to the area where the paraphernalia was located when asked, "Where's the cocaine stuff?"

A number of other state and federal circuit court cases have been decided since Hoffman. Unlike Hoffman and High Ol' Times, many of the statutes/ordinances discussed in those cases were based directly on the Model Drug Paraphernalia Act. As a general proposition, most of the statutes/ordinances based on the Model Act were upheld; those not so based were struck down. See New England Accessories Trade Association v. Tierney, 691 F.2d 35 (1st Cir.1982); Levas & Levas, 684 F.2d at 454; Record Head Corp. v. Sachen, 682 F.2d 672 (7th Cir.1982); Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir.1981), cert. denied 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982); Philman's, Inc. v. City of West Carrollton, 577 F.Supp. 1380 (S.D.Ohio 1983); see also Note, The Constitutionality of Drug Paraphernalia Laws, 81 Colum.L.Rev. 581, 592-600 (1...