State v. Martinez

• Decision Date: 24 July 1975
• Docket Number: No. 43510,43510
• Citation: 85 Wn.2d 671,538 P.2d 521
• Parties: STATE of Washington, Respondent, v. Dennis Ray MARTINEZ, Appellant.
• Court: Washington Supreme Court

Page 671

85 Wn.2d 671

538 P.2d 521

STATE of Washington, Respondent, v. Dennis Ray MARTINEZ, Appellant.

No. 43510.

Supreme Court of Washington, En Banc.

July 24, 1975.

Walla Walla Legal Aid Spokane County Legal Services, Norman R. Rosenberg, Walla Walla, spokane, for appellant.

Arthur Eggers, Pros. Atty., Jerry Votendahl, Deputy Pros. Atty., Walla Walla, for respondent.

FINLEY, Associate Justice.

Defendant Dennis Ray Martinez was charged with and convicted of vagrancy pursuant to RCW 9.87.010(13). Defendant appeals and contends that the statute is (1) void for vagueness; (2) unconstitutionally overbroad; and (3) violative of equal protection.

Defendant was suspended from high school on approximately September 24, 1973, and ordered not to return unless accompanied by his parents. No formal hearing was held prior to or subsequent to the suspension. However, on October 9, defendant informed the assistant principal that he did not intend to return to school.

Subsequent to October 9, defendant was observed upon school property and warned not to return during school hours. However, on November 8, defendant returned to the school during school hours to speak with another student, apparently concerning possible employment in a musical combo. Defendant did not seek permission from the school administration to speak with the student but, instead, went directly to the 'study hall' where the other student was located. Upon seeing the defendant, the assistant principal summoned police who arrested defendant and cited him for vagrancy, pursuant to RCW 9.87.010(13) ¹ which provides as follows 9.87.010 Vagrancy. Every--

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(11) Person, except a person enrolled as a student in or parents or guardians of such students or person employed by such school or institution, who without a lawful purpose therefor wilfully loiters about the building or buildings of any public or private school or institution of higher learning or the public premises adjacent thereto--

Is a vagrant, and shall be punished by imprisonment in the county jail for not more than six months, or by a fine of not more than five hundred dollars.

There is no indication or finding of fact that the defendant's activities caused a material disruption of the classroom or of the educational process.

Before proceeding to the merits of defendant's constitutional challenge, one procedural matter raised by the State must be considered, Viz., it is argued that this court has no jurisdiction of the case because defendant did not file a timely notice of appeal within 30 days after entry of judgment as required by ROA I--46 and CAROA 46(b)(1). This 30-day requirement is jurisdictional. State v. Miller, 67 Wash.2d 59, 406 P.2d 760 (1965); Snohomish v. Patric, 56 Wash.2d 38, 350 P.2d 1009 (1960). The judgment was entered on July 18, 1974, and the notice of appeal was filed on August 19, 1974. According to the State, this is a period of 32 days and, thus, the notice of appeal was untimely. However, the state's computation is erroneous because is fails to follow the mandates of ROA I--9 and CAROA 9. These rules provide that in computing a time period within which an act is to be completed, the first day is to be excluded, the last day is to be included, and if the last day is a Saturday, Sunday, or holiday, then the act must be completed on the next business day. Thus, in the instant case, the computation should begin on July 19 and the 30th day falls on August 17, which is a Saturday. Therefore, defendant had until Monday, August 19, to timely file the notice of appeal and he did so at that time. Hence, this court has jurisdiction over the case and we must consider the merits of defendant's constitutional arguments.

The constitutionality of RCW 9.87.010(13) was first considered by this court in State v. Oyen, 78 Wash.2d 909, 480 P.2d 766 (1971), Vacated, 408 U.S. 933, 92 S.Ct. 2846, 33 L.Ed.2d 745 (1972). Defendants there argued that in proscribing loitering 'without a lawful purpose,' The provsion was both vague and overbroad. However, this court construed the term 'without a lawful purpose' to embrace those who enter uon school premises or the public places adjacent thereto without legitimately related school purposes. As construed, this court held that the provision was not impermissibly vague, was not unconstitutional as applied, and was not unconstitutionally overbroad. The United States Supreme Court vacated and remanded this decision for reconsideration in light of Police Dep't of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) and Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Both Grayned and Mosley invalidatd on equal protection grounds statutes that prohibited non-labor picketing near schools but that allowed labor picketing near schools. Also at issue in Grayned was the constitionality of a statute regulating noise near schools, but it was upheld as against claims that it was impermissibly vague and overbroad. On remand, this court did not reconsider the merits of Oyen but instead entered a supplemental judgment and remanded the case to the Superior Court for Whatcom County for reconsideration. No further proceedings in Oyen were had in this court.

A vacation of a lower court judgment is essentially a neutral disposition. It constitutes neither an affirmance nor a reversal on the merits. But it does nullify--in a neutral manner--the judgment and earlier proceedings that transpired in the court from which the appeal was taken. See Defunis v. Odegaard, 84 Wash.2d 617, 529 P.2d 438 (1974) (Finley, J., concurring in part, dissenting in part). As such, the effect of the vacation by the Supreme Court of our decision in Oyen was to nullify or remove the construction that we had therein placed upon RCW 9.87.010(13). Therefore, in the instant case, we must consider anew the facial validity of RCW 9.87.010(13) and, if necessary, we must then determine whether a limiting construction may reasonably be placed upon the statute to save it from any possible vagueness and/or overbreadth.

Defendant's first argument is that RCW 9.87.010(13) is void for vagueness. In assessing this claim, the touchstone for our analysis is the Due Process Clause which commands that the prohibitions of a penal statute be clearly drawn and defined as to standards of guilt. There are essentially two independent reasons for the requirement of specificity in penal statutes. First, due process requires that citizens be afforded fair notice as to what conduct is forbidden. Second, explicit standards are necessary in order to prevent arbitrary arrests and convictions resting simply on the 'unfettered discretion' of the police, judges, and juries. Papachristou v. Jacksonville, 405 U.S. 156, 168, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). See also Grayned v. Rockford, supra; United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).

We start with the proposition that '(p)rima facie, mere . . . loitering on a public way is lawful and the right of any man, woman, or child.' Commonwealth v. Carpenter, 325 Mass. 519, 521, 91 N.E.2d 666, 667 (1950). Our prior cases make clear that a statute which simply proscribes 'loitering' is impermissibly vague because the word loiter standing alone does not necessarily connote sinister or illegal activity and, thus, the ordinary citizen will be uninformed as to what types of behavior will and will not be subject to criminal prosecution. Seattle v. Pullman, 82 Wash.2d 794, 514 P.2d 1059 (1973); Seattle v. Drew, 70 Wash.2d 405, 423 P.2d 522, 25 A.L.R.3d 827 (1967). Nearly all courts are in accord and hold statutes unconstitutional which purport to punish loitering per se. Note, 4 Harv.Civ.Rts.-Civ.Lib.L.Rev. 275, 276 (1968).

Therefore, RCW 9.87.010(13) can be held constitutional only if it contains additional qualifying language so that arbitrary arrests are not encouraged and so that the average citizen will be apprised of what types of acts are proscribed. In RCW 9.87.010(13), the place of the proscribed loitering is made reasonably clear, I.e., on school premises or on public premises immediately adjacent thereto. Likewise, the class of persons prohibited from so loitering is defined. Finally, the type of loitering proscribed is denominated as 'wilful.' But all trespass itself is not proscribed by RCW 9.87.010(13). Hence, these additional qualifiers obviously fail to apprise an individual of the circumstances under which 'wilful loitering' on school premises or on the public premises adjacent thereto is subject to punishment. Cf. Ex Parte Mittelstaedt, 164 Tex.Cr.R. 115, 297 S.W.2d 153 (1956).

The only qualifier that conceivably lends certainty to RCW 9.87.010(13) is that only loitering 'without a lawful purpose' is prohibited. However, our recent decision in Bellevue v. Miller, wash. (1975) makes clear that grounding the decision to arrest an individual upon the supposed absence or presence of a lawful purpose is constitutionally impermissible:

A determination of whether particular activity manifests an unlawful purpose or creates alarm is entirely dependent upon a police officer's opinion, not only with respect to what conduct the ordinance prohibits, but also with respect to the suspected import of the activity observed. Such extravant police discretion is plainly improper. . . . Legislation which purports to define illegality by resort to such inherently subjective terms as 'unlawful purpose' or 'alarm' permits, indeed requires, an ad hoc police determination of criminality. Such legislation is vague because there can be no prior notice of what conduct an individual officer will find sufficiently suspicious to warrant arrest. The potential for arbitrary and discriminatory law enforcement under such legislation cannot constitutionally be...