State v. Oyen

Decision Date11 February 1971
Docket NumberNo. 41298,41298
Citation78 Wn.2d 909,480 P.2d 766
PartiesThe STATE of Washington, Respondent, v. Waldemar Ager OYEN, Ian David Trivett, Lauren Charies Bathurst, Ronald Jay Felton, Joe Eugene Start, George Boyd Hartwell, Tony Morefield, and Michael James Burr, and each of them, Appellants.
CourtWashington Supreme Court

Michael H. Rosen, Christopher E. Young, Seattle, for appellants.

James P. Thompson, Pros. Atty., William A. Gardiner, Deputy Pros. Atty., Bellingham, for respondent.

HAMILTON, Chief Justice.

Defendants were convicted of violating RCW 9.87.010, which provides, in part:


(13) 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.

On appeal to this court, defendants challenge the validity of the quoted portion of the statute, contending that it is inapplicable as to them and their alleged activities and that it is unconstitutionally vague and overly broad.

The matter was heard in superior court, and comes here on stipulated facts. The pertinent circumstances are these:

The board of directors of the school district embracing Sehome High School in the city of Bellingham, promulgated and had in force at all times in question a regulation providing that any nonschool-related handouts or leaflets distributed to students on the school premises be first approved by the superintendent. This included, but was not limited to, notices and leaflets announcing youth programs sponsored by such organizations as the Y.M.C.A., Y.W.C.A., Boy Scouts, Girl Scouts, etc.

On November 25, 1968, one of the defendants, Joe Eugene Start, contacted the principal of the high school regarding the distribution of leaflets at the school together with the possibility of a school assembly to discuss varying views concerning the selective service system and the draft. He was at that time advised of the school board's regulation and of the approval required thereunder.

Without further effort to comply with the regulation, the eight defendants, including Mr. Start, appeared on the school premises at 7:30 a.m., November 26, 1968, stationed themselves under a covered walkway adjacent to the school bus unloading area, and each commenced the distribution of pamphlets, entitled 'Channeling' and 'Uptight with the Draft,' to the students as they left their busses preparatory to entering classes. Shortly after this activity started, the school principal appeared and advised defendants of the regulation concerning the distribution of materials on campus, their noncompliance therewith, and thrice asked them to leave. The defendants refused to desist and depart, whereupon the principal called the Bellingham Police Department.

A police officer later arrived and informed defendants that, under the circumstances, their presence and actions constituted a violation of state law and that it would be necessary to arrest them if they did not leave the premises. The defendants responded to the officer's warning by stating that they considered the law to be unconstitutional, and that they refused to cease their activities short of arrest. The officer then arrested them and booked them at the city jail for the violation of law of which they were subsequently convicted. After booking, the defendants were released upon their personal recognizance pending trial.

The defendants were not students or employees of the Sehome High School nor were they parents or guardians of any students attending the school. Approximately 150 students were present and observed the incidents leading up to the arrest of defendants. Except for some student boos and hisses expressing disapproval of the defendants, no violence occurred.

Prefatory to addressing our attention to the issues presented on this appeal, we deem it appropriate to make three general observations.

First, when the constitutionality of a statute is assailed there arises a presumption of the enactment's constitutionality and it will not be judicially declared unconstitutional unless its repugnancy to the constitution clearly appears or is made to appear beyond a reasonable doubt. Clark v. Dwyer, 56 Wash.2d 425, 353 P.2d 941 (1960), cert. denied, 364 U.S. 932, 81 S.Ct. 379, 5 L.Ed.2d 365 (1961). Furthermore, if the statute is reasonably capable of a constitutional construction it will be given that construction. State ex rel. Starkey v. Alaska Airlines, Inc., 68 Wash.2d 318, 413 P.2d 352 (1966); City of Seattle v. Drew, 70 Wash.2d 405, 423 P.2d 522, 25 A.L.R.3d 827 (1967). Where, however, rights guaranteed under the first amendment to the United States Constitution may be involved in the reach of a questioned statute, courts must scrutinize the legislation with great care to be certain that fundamental freedoms are not impermissibly curtailed. Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966).

Second, the education of the youth of our nation has historically been of supreme concern and interest to our citizenry. The Ordinance for the Northwest Territorial Government, 1787, Art. 3, declared: 'Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged.' The Enabling Act of 1889, section 4, Fourth, 25, Stat. 676, conditioned the admission of the States of North Dakota, South Dakota, Montana, and Washington upon the premise 'That provision shall be made for the establishment and maintenance of systems of public schools, * * *.' Our state constitution asserts 'It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, * * *' Const. art. 9, § 1. Consistent and in keeping with the doctrine thus enunciated our first state legislature established a general uniform public education system, the property, buildings, and facilities for which were to be acquired, financed, constructed, maintained, and administered through the cooperation of state, county, and school district agencies and officers. Subsequent legislatures, although reenacting, amending, and modifying school codes, have not deviated from the central theme--that it is a preeminent duty and obligation of local and state government to amply provide, promote, and protect the inalienable right of each young generation to a sound, meaningful and proficient education taught in an appropriate environment, under compatible conditions, and subject to reasonable regulations. Newman v. Schlarb, 184 Wash. 147, 50 P.2d 36 (1935); State ex rel. Dupont--Fort Lewis School Dist. 7, Pierce County v. Bruno, 62 Wash.2d 790, 384 P.2d 608 (1963).

Third, RCW 9.87.010(13) is in the nature of a preventative measure enacted under the reserved police power of the state. Its apparent legislative design is to provide school administrators and law enforcement agencies with a means by which to exercise some degree of control over activities on or about school premises which are unrelated to legitimate school purposes and being carried on by unauthorized individuals not associated with the school's academic community. Undoubtedly, it is aimed at maintaining a scholastic atmosphere as well as protecting school properties and preserving the moral and physical safety and well-being of the student body from the intrusion and harassment of degenerates, dope peddlers, pornographers, vandals, troublemakers in general, and other persons who might perversely wish to indiscriminately utilize school premises for purposes detrimental to or unconnected with the basic educational processes to which the properties are dedicated. In this vein, it is essential to recognize the fact that while school properties are public in the sense that they are endowed and operated with taxpayers' money, they are not public in the sense that any member of the general public may, when and if he pleases, use such properties for his own personal objectives or the dissemination of his own personal views. Accordingly, the uses to which such properties may be put by members of the public, otherwise unaffiliated with the school operation, are properly subject to reasonable statutory, as well as administrative, regulation and proscription. People v. Johnson, 6 N.Y.2d 549, 190 N.Y.S.2d 694, 161 N.E.2d 9 (1959); People v. Sprowal, 49 Misc.2d 806, 268 N.Y.S.2d 444, aff'd, 17 N.Y.2d 884, 271 N.Y.S.2d 310, 218 N.E.2d 343, appeal dismissed, 385 U.S. 649, 87 S.Ct. 768, 17 L.Ed.2d 670 (1966); State v. Starr, 57 Ariz. 270, 113 P.2d 356 (1941).

With these observations in mind, we turn to the merits.

Defendants, in essence, mount a three-pronged attack upon RCW 9.87.010(13). They contend that, first, it is unconstitutionally vague; second, it is unconstitutionally overbroad; and, third, it was unconstitutionally applied to them and their conduct on the school premises involved.

We cannot agree with defendants' challenges.

The doctrine of void for vagueness was established by a series of United States Supreme Court cases, including United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed.2d 516 (1921); Connally v. General Constr. Co., 269 U.S. 385, 70 L.Ed. 322, 46 S.Ct. 126 (1926); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); and Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). The doctrine rests upon repugnancy to the due process clause of the fourteenth amendment to the United States Constitution. It is succinctly stated in Landry v. Daley, 280 F.Supp. 938, 951 (N.D.Ill.1968), as follows:

The concept of vagueness...

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