State v. Dixon
| Decision Date | 14 January 1971 |
| Docket Number | No. 40971,40971 |
| Citation | 78 Wn.2d 796,479 P.2d 931 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Appellant, v. Aaron DIXON, Larry Gossett, and Carl Miller, Respondents. |
Charles O. Carroll, Pros. Atty., Neal J. Shulman, David W. Hotchkin, Deputy Pros. Attys., Seattle, for appellant.
Ronald J. Meltzer, Edmund J. Wood, Michael H. Rosen, Seattle, for respondents.
Surround most any straightforward proposition with enough sophistry and it will vanish--or become unintelligible. The law, like other intellectual disciplines, has tried to cope with the sophistry brought to bear upon it by applying common sense. This has, on occasion, proved to be the only mechanism available by which to dissipate the fog of rhetoric generated around some legal propositions--particularly principles of constitutional law. The Constitution of the United States declares that one of the great aims of free government is to insure domestic tranquility. Common sense dictates that, without the assurance of domestic tranquility, the other grant aims of free government will remain unachieved, and the individual rights upon which they depend will vanish. There is nothing unconstitutional about common sense.
Three defendants here appealed to the superior court from their district justice convictions of violating the unlawful assembly statute. RCW 9.27.060(2) and (3). Holding the statute unconstitutional and void under what has been sometimes described as the constitutional doctrine of vagueness and overbreadth, the court ordered the complaint dismissed. The state now appeals both the order of dismissal and the declaration of unconstitutionality.
As we understand the record, defendants did not directly challenge the language or meaning of the complaint upon which they had been and were about to be tried; nor claim that they could not understand what it meant; nor that, because of the complaint's vagueness and uncertainty, they were unable to prepare a defense. Instead, defendants directed their attack toward the whole statute under which in justice court they had been tried and convicted. Taking a panoramic view of the statute and without referring to the facts of the case, the superior court held it void per se.
The statement of facts in this case consists entirely of colloquy, argument and commentary upon the law, with only peripheral references as to what facts the prosecution claimed had been earlier shown or would be shown at trial. We have had to piece the record together, consequently, from the transcript, briefs and argument to find out what happened and of what the defendants were convicted in the first place.
The order of dismissal was unusual in form as the court, before signing it, so aptly indicated, as follows:
The order of dismissal does, however, provide a basis for appeal in this case for the state excepted to its entry and all of the recitals set forth in it, and now appeals both the dismissal of the cause and the ruling of unconstitutionality. Assignments of error run to both the effect of the order and the legal conclusions in it. We agree with the court's evaluation that the order amounts to an editorializing, but will treat the order as a written memorandum of opinion showing in summary some of the court's views in declaring the statute unconstitutional and void. See Appendix. We think it a better practice, however, that judicial opinions be identified as such in the record and be included in the statement of facts or, if fully verified, in the transcript.
Only a few peripheral references to the facts of the case appear in the statement of facts and neither party supplied the record with even a brief summary of the evidence upon which the justice court conviction rested, or of what the state would attempt to prove in superior court. The court knew that the justice court complaint arose out of events occurring in the principal's office at Franklin High School. The record does show explicitly that the defendants here were three of five individuals charged in district justice court in a complaint phrased substantially in the language of the statute, 1 and tried by a jury which returned verdicts of guilty against these three defendants and acquitted the other two. It was clear to the court in the instant case, we think, that the state had proved in justice court to the satisfaction of the jury and would attempt to prove again in superior court that the defendants had entered the principal's office at Franklin High School in Seattle, had refused to leave when requested and had remained there for several hours, committing physical damage to the premises and furnishings while there. 2 The conduct charged as a violation is of some moment in assessing the constitutionality of the statute for defendants attack its application here as well as its substance. See Comstock v. United States, 419 F.2d 1128 (9th Cir. 1969).
The instant case was not simply a suit for a declaratory judgment of unconstitutionality, but an appeal from judgments of conviction in justice court. The unlawful assembly statute which the defendants were convicted of violating and which the court declared void reads:
(3) Being assembled, shall attempt or threaten any act tending toward a breach of the peace, or an injury to persons or property, or any unlawful act--such an assembly is unlawful, and every person participating therein by his presence, aid or instigation, shall be guilty of a gross misdemeanor.
Unless a criminal statute is so glaringly unconstitutional, so palpably in derogation of specifically enumerated and declared constitutional rights that reasonable men could not differ about it, its constitutionality should be tested in the light of some kind of behavior, actual or hypothetical. Courts do not operate in a vacuum. Knowledge of the facts which evoked the issues of law is usually essential to an understanding of the law to be applied. A criminal statute, colorably valid, cannot ordinarily be plucked out of thin air, so to speak, and be made the subject of a sensible judicial analysis. Even a suit for a declaratory judgment of statutory interpretation must postulate some events, imminent or threatened, before the courts will rule on the statute's validity, meaning or application. See Appendix. In Seattle v. Drew, 70 Wash.2d 405, 403 P.2d 522 (1967), where a loitering ordinance substituted the subjective judgments and personal prejudices of a police officer for the law itself by making it a criminal offense for the accused to 'fail to give a satisfactory accourt of himself upon the demand of any police officer,' this court found it necessary to elucidate the rationale with a margined narration of the operative facts. Seattle v. Drew, Supra, at 407, n. 3, 423 P.2d at 523.
Defendants here, as noted, challenged the statute--but not the complaint--for vagueness, indefiniteness and uncertainty. Not having moved against the complaint per se as they had a right to do, they must be deemed to have found it legally sufficient. A complaint, information or indictment, though sufficient to charge a crime, may be subject to attack because it is too indefinite or uncertain to enable the accused to prepare his defense. It is also subject to a demand for a bill of particulars. See State v. Royse, 66 Wash.2d 552, 403 P.2d 838 (1965). Ordinarily, if the offense is one created by statute, the offense may--as was done here--be charged in the language of the statute. State v. Howard, 157 Wash. 183, 288 P. 236 (1930); State v. Tiffany, 44 Wash. 602, 87 P. 932 (1906). If the statutory language is too indefinite or uncertain to enable the accused to prepare a defense to it and plead a judgment rendered under it as a bar to a subsequent prosecution for the same offense, the complaint, indictment or information--although not necessarily void for vagueness--is subject to motions to clarify, make more definite and certain, or for a bill of particulars. State v. Thomas, 73 Wash.2d 729, 440 P.2d 488 (1968); State v. Moser, 41 Wash.2d 29, 246 P.2d 1101 (1952).
Acts or conduct described in a penal statute in the disjunctive or alternative may be pleaded in the conjunctive. State v. Rooney, 2 Wash.2d 17, 97 P.2d 156 (1939). If the charge is in the conjunctive, the information is held to charge a single crime committed in any one or all of the ways charged. State v. Holedger, 15 Wash. 443, 46 P. 652 (1896); State v....
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...of protected conduct? If possible, an enactment must be interpreted in a manner which upholds its constitutionality. State v. Dixon, 78 Wash.2d 796, 804, 479 P.2d 931 (1971). Luvene argues that two aspects of the ordinance create overbreadth problems: lack of a clearly identified mens rea c......
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...91 S.Ct. 1235, 28 L.Ed.2d 527 (1971); Devine v. Wood, 286 F.Supp. 102, 106 (M.D.Ala.1968) (three-judge court); State v. Dixon, 78 Wash.2d 796, 806, 479 P.2d 931, 937 (1971). Peaceable protests and demonstrations, on the other hand, are an entirely different form of group conduct, one which ......
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