State v. Newton

• Decision Date: 05 September 1975
• Docket Number: No. 56186,56186
• Citation: 328 So.2d 110
• Parties: STATE of Louisiana v. Sherman NEWTON.
• Court: Louisiana Supreme Court

Page 110

328 So.2d 110

STATE of Louisiana v. Sherman NEWTON.

No. 56186.

Supreme Court of Louisiana.

Sept. 5, 1975.

On Rehearing Feb. 23, 1976.

Rehearing Denied March 26, 1976.

C. R. Whitehead, Jr., Whitehead & McCoy, Natchitoches, for defendant-appellee.

William J. Guste, Jr., Atty. Gen., L. J. Hymel, Jr., Barbara Rutledge, Walter L. Smith, Jr., Asst. Attys. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.

CALOGERO, Justice (dissenting).

The defendant Sherman Newton was indicted for bribery of voters in violation of La.R.S. 14:119.¹ Indicted at the same time for the same offense were ten other defendants. Four of the defendants are charged with giving money to influence voters; seven are charged with accepting money for their votes.² The statute makes both activities, giving and accepting, criminal offenses.

Defendants filed a motion to quash the indictments on the ground that they fail to charge an offense which is punishable under a valid statute. La.C.Cr.P. Art. 532(1). Defendants attack the statute on the grounds that it is vague and overbroad in derogation of the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution, and in contravention of Article I, Section 10 of the Louisiana Constitution of 1921 which requires that '(i)n all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him.' The trial judge sustained the motion to quash and dismissed the indictments on the ground that the statute was unconstitutional. The state appeals to this Court pursuant to La.C.Cr.P. Art. 912(B)(1).

The language of the statute which is at issue here defined the offense of bribery of voters as 'the giving or offering to give, directly or indirectly, any money, or anything of apparent present or prospective value to any voter at any . . . election . . . with the intent to influence the voter in the casting of his ballot.' Also proscribed is the 'acceptance of, or the offer to accept, directly or indirectly, any money, or anything of apparent present or prospective value, by any such voters under such circumstances.'³ The constitutionality of this language has never before been considered by this Court.⁴

The dual vices of vagueness and overbreadth, although sometimes overlapping, are distinguishable. A vague statute describes conduct in a manner so unclear that it leaves intelligent people uncertain as to the limits of its application. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 Pa.L.Rev. 67 (1960).

An overbroad statute, on the other hand, is clear about what it prohibits, but it stifles expression or conduct which is otherwise protected by the Constitution. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964). The doctrine of overbreadth is particularly applicable where a statute infringes upon behavior protected by the First Amendment. Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); NAACP v. Alabama, supra. When a statute seems to prohibit free expression, citizens may fail to speak rather than risk prosecution under the statute. N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Reinstein and Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv.L.Rev. 1113 (1973); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970). Moreover, 'it gives enforcement officials the power to select certain citizens, from all of those exercising a particular right, and punish them.' Scott v. District Attorney, Jefferson Parish, State of Louisiana, 309 F.Supp. 833, 838 (E.D.La.1970), affirmed 437 F.2d 500 (5th Cir. 1971). See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).

R.S. 14:119 prohibits, among other things, the indict offering to give anything of apparent or prospective value to any voter with the intent to influence that voter in casting his ballot. This language is not vague; it is clear and unambiguous. But it is overbroad. The statute on its face makes it a crime for political candidates and their spokesmen to do such things as promise voters better government in return for their votes; give voters handbills, buttons, pencils, or dinners to influence them to vote for their candidate promise to lower taxes, change assessments, or implement welfare reform after election. The speeches of political candidates and their followers are unquestionably protected by the First Amendment. These are the very forms of speech essential to a democracy. As the United States Supreme Court proclaimed in Cox v. State of Louisiana, supra, 379 U.S. at 552, 85 S.Ct. at 463,

'Maintenance of the opportunity for free political discussion is a basic tenet of our constitutional democracy. As Chief Justice Hughes stated in Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117: 'A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.''

Conduct is often a means of expression, falling under the protection of the First Amendment. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Cox v. State of Louisiana, supra; State v. Ganch, 263 La. 251, 268 So.2d 214 (1972). When a candidate offers to the voters more fiscally responsible government, he is offering them something of 'apparent . . . prospective value' in derogation of R.S. 14:119 while he is exercising him unlimited right of free speech protected by the First Amendment. When a candidate offers a free pencil to a voter, he is offering him something of 'apparent present . . . value' in derogation of R.S. 14:119 while he is engaging in conduct protected by the First Amendment. Because the statute on its face prohibits these protected activities along with activities which may constitutionally be proscribed, such as bribery, it is an overbroad statute.

The state argues that these defendants were indicted for giving or accepting money to influence votes, and that they cannot now be heard to challenge the overbreadth of the statute as it pertains to activities in which they were not engaged. Certainly that is the general rule. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974). However, when the statute prohibits free expression protected by the First Amendment, a litigant can attack the statute even though his particular conduct could constitutionally be made criminal by the statute. Broadrick v. Oklahoma, supra; Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962). Litigants are allowed to challenge such statutes 'not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.' Broadrick v. Oklahoma, supra, 413 U.S. at 612, 93 S.Ct. at 2916. This relaxation of the general rule has been allowed in cases involving statutes which purport to regulate only 'pure speech.' Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); State v. Adams, 263 La. 286, 268 So.2d 228 (1972); State v. Ganch, supra. It has also been allowed in cases involving statutes which regulate conduct which is protected by the First Amendment. United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); NAACP v. Button, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); City of Baton Rouge v. Ewing, 308 So.2d 776 (La.1975).

The state urges this Court to interpret this statute so as to confine it to constitutional bounds. We refuse to do so. When a court has found that a statute on its face sweeps broadly into areas protected by the First Amendment, the proper disposition of the case is to hold the statute void on its face. Gooding v. Wilson, supra; Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Then the Legislature, the proper body for writing statutes, will be able to adopt a bribery of voters statute which is constitutional. As we stated in City of Baton Rouge v. Ewing, supra at 779, '(t)o cure such overbreadth would not so much be a matter of reasonable judicial construction as of substantial legislative revision.' In State v. Harrison, 280 So.2d 215 (La.1973) and State v. Ganch, supra, we likewise refused to rewrite overbroad statutes.

For these reasons, we affirm the trial court's holding that R.S. 14:119 is constitutionally infirm, and its action in quashing the indictments.

BARHAM, J., concurs additionally being of the opinion that there are numerous additional constitutional infirmities in the statute.

SANDERS, C.J., and SUMMERS, J., dissent and assign written reasons.

MARCUS, J., dissents.

SANDERS, Chief Justice (dissenting).

The majority has held that LSA-R.S. 14:119 is unconstitutional because of overbreadth. The statute provides:

'Bribery of voters is the giving or offering to give, directly or indirectly, any money, or anything of apparent present or prospective value to any voter at any general, primary, or special election, or at any convention of a recognized political party, with the intent to influence...