State v. Kimball
| Decision Date | 10 November 1972 |
| Docket Number | No. 5166,5166 |
| Citation | 503 P.2d 176,54 Haw. 83 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Evelyn KIMBALL, also known as Evelyn Hammond Kimball, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. HRS § 70-105 provides that if a statute discloses an express or implied intent that a statute be exclusive or uniform throughout the state, an ordinance covering the same subject or matter is invalid.
HRS § 727-24 evinced an implied intent to be the exclusive legislation in the area and thus pre-empted section 13-5.1 of the Revised Ordinances of Honolulu.
2. An arrest is not rendered invalid by the fact that the arresting officer had a pre-empted ordinance in mind rather than a state statute with provisions similar to the ordinance, if the facts known to the arresting resting officer also constituted probable cause to arrest under the state statute.
3. A penal statute which, by its terms, does not sufficiently describe or give fair notice of those acts which it forbids, is of vague meaning and runs afoul of the 'due process' protections of the fourteenth amendment of the United States Constitution and article I, section 2, of the Hawaii State Constitution.
4. In determining the meaning of a statute, laws in pari materia, or upon the same subject matter, will be construed with reference to each other.
5. Generally, administrative rules and regulations promulgated pursuant to statutory authority have the force and effect of law.
6. When read in pari materia with other statutes and administrative rules and regulations, HRS § 727-24 gives fair notice of the meaning of 'without proper authority' and is not unconstitutionally vague.
7. As the state is charged with the duty of public education, the state may regulate activity on school premises as a valid exercise of its police power; however, as broad as this police power may be, it is not plenary and may not infringe on those fundamental constitutional rights common to all.
8. Though school property is public in the sense that it is government property, it is not public in the sense that it is subject to unfettered public use.
Brook Hart, Special Deputy Public Defender (James Blanchfiled, Honolulu, with him on the briefs, Donald Tsukiyama, Public Defender, of counsel), for defendant-appellant.
Leland Spencer, Duputy Pros. Atty. , for plaintiff-appellee.
Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.
This is an appeal by Evelyn Kimball, the defendant, from her conviction and sentence for unlawful possession of harmful drugs in violation of HRS §§ 328-82(3), 328-84(a) and 328-86(c).
On the afternoon of June 11, 1970, while school was out for the summer, the defendant and four others were sitting under a tree on school grounds. Upon a complaint from an unknown person, the defendant and others with her were arrested for being unlawfully on school premises in violation of section 13-5.1 of the Revised Ordinances of Honolulu. After the arresting officer frisked the others for weapons, he noticed the defendant walking around the tree with her left hand concealed behind her. He asked the defendant what she had in her hand. The defendant said 'nothing' but the arresting officer grabbed her hand, determined to find out whether defendant had a weapon, whereupon defendant dropped to the ground two small packages of drugs. Thereupon defendant was charged for the unlawful possession of harmful drugs in violation of HRS §§ 328-82(3), 328-84(a) and 328-86(c).
Prior to trial the defendant moved to suppress the drugs taken incident to her arrest alleging that the arrest upon which the search was based was made pursuant to:
(1) An ordinance (section 13-5.1 of the Revised Ordinances of Honolulu) which was void, having been preempted (2) An ordinance that is unconstitutional for vagueness and overbreadth.
by HRS § 727-24 and Act 97, S.L.H.1965; and
Upon denying the defendant's motion to suppress, the trial court held the following:
(1) Though the arrest was made pursuant to a city ordinance (section 13-5.1, Revised Ordinances of Honolulu), the legality of such arrest does not stand or fall on the question of validity of the pre-empted ordinance so long as defendant's conduct concurrently violates a state statute of similar import.
(2) HRS § 727-24 satisfies the pre-emption provision of HRS § 70-105 and thus pre-empts sections 13-5.1, Revised Ordinances of Honolulu. Therefore the constitutionality of the latter ordinance need not be decided.
(3) HRS § 727-24 is not unconstitutionally vague and thus supports the reasonableness of the search of the defendant incident to her arrest.
Thereafter, upon trial, defendant was found guilty of the crime charged.
Defendant was arrested initially for violating section 13-5.1 of the Revised Ordinances of Honolulu. Said section 13-5.1 provides as follows:
No person shall go or remain upon, loiter around, in or upon or play or engage in any game in or upon any public school buildings or public school grounds, without lawful business or excuse for so doing.
The same subject matter is dealt with in HRS § 727-24 which provides:
§ 727-24 Intruding, loitering, loafing, or idling on school premises; penalty. Any person intruding, or loitering, or loafing, or idling, without proper authority upon the premises of any school, public or private, of any school dormitory, or of the Hawaii youth correctional facilities, may be arrested by any police officer, without any warrant, and on the complaint of the principal or other person in charge of the school, or of any trustee of the same; upon conviction thereof he shall be fined not more than $200 or imprisoned not more than six months, or both. Nothing in this section shall be construed (1) to preclude the right of the parent, or legal guardian, or other person having written permission of the parent to take custody of a student during regular school hours, and (2) to preclude the punishment of the offender for any other offense committed on the premises, nor of the right of action for civil damages.
HRS § 70-105 provides:
§ 70-105 Effect of state statutes. No ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute of the State; provided that the ordinance is not inconsistent with and does not tend to defeat the intent or object of the statute or of any other statute; provided also that the statute does not disclose an express or implied intent that the same shall be exclusive, or uniform throughout the State. (Emphsis added.)
The trial court found that HRS § 727-24 clearly pre-empted section 13-5.1 of the Revised Ordinances of Honolulu on the basis of In re Application of Anamizu, 52 Haw. 550, 481 P.2d 116 (1971). In construing the express or implied intent provision of HRS § 70-105 this court, in Anamizu, held that the existence of a comprehensive state statute regulating the licensing of contractors demonstrated an implied intent to be the exclusive legislation in the field and to pre-empt a similar city ordinance.
In finding that the legislature intended HRS § 727-24 to be the exclusive legislation in the area, the trial court considered the fact that although the city and county of Honolulu originally had a proprietary We find that the trial court correctly held that HRS § 727-24 pre-empted section 13-5.1 of the Revised Ordinances of Honolulu and that the statute evinced an implied intent to be the exclusive legislation in the area.
interest in the school grounds and buildings, it was divested of this function in 1965 when the state took control over school construction and management. 1
Notwithstanding the fact that a pre-empted ordinance is void and incapable of supporting a valid arrest, if the defendant's conduct is also violative of a similar state statute, the arrest may nevertheless be valid. That being the situation here, it is of no effect that the arresting officer had the ordinance in mind rather than the statute when effecting the arrest. The point of importance is that the facts and circumstances within the officer's knowledge afforded probable cause to arrest under either the ordinance or the statute. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Chong, 52 Haw. 226, 473 P.2d 567 (1970).
IS HRS § 727-24 VOID FOR VAGUENESS?
Appellant claims that the words 'loiter' 2 and 'without proper authority' contained in HRS § 727-24 are unconstitutionally vague.
The law is clear that if a penal statute, by its terms, does not sufficiently describe nor give fair notice of those acts which it forbids, the statute is of vague meaning and runs afoul of the 'due process' protections of the fourteenth amendment of the United States Constitution and article I, section 2 of the Hawaii State Constitution. Connally v. General Construction Company, 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926); State v. Miller, 54 Haw. 1, 501 P.2d 363 (1972); State v. Grahovac, 52 Haw. 527, 554-535, 480 P.2d 148, 153 (1971); State v. Abellano, 50 Haw. 384, 385, 441 P.2d 333 (1968); Territory v. Naumu, 43 Haw. 66, 68 (1958); Territory v. Anduha, 31 Haw. 459 (1930), aff'd 48 F.2d 171 (9th Cir. 1931). Further, a law of vague meaning which prescribes no fixed standard by which guilt may be adjudged renders the guilt of an accused person subject to the whim or caprice of the policeman on the beat, the judge or the jury. Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966); Shuttlesworth v. Birmingham, 382 U.S. 87, 90, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965).
We cannot say that the 'without proper authority' clause of HRS § 727-24 fails to give fair notice of the conduct that it forbids.
In determining the meaning of a statute, laws in pari materia, or upon the same...
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