State v. Schmailzl

• Decision Date: 09 July 1993
• Docket Number: No. S-92-576,S-92-576
• Citation: 502 N.W.2d 463,243 Neb. 734
• Parties: STATE of Nebraska, Appellant, v. Robert SCHMAILZL, Appellee.
• Court: Nebraska Supreme Court

Page 463

502 N.W.2d 463

243 Neb. 734

STATE of Nebraska, Appellant, v. Robert SCHMAILZL, Appellee.

No. S-92-576.

Supreme Court of Nebraska.

July 9, 1993.

Syllabus by the Court

1. Constitutional Law: Statutes: Appeal and Error. Alleged unconstitutionality of a statute presents a question of law, which must be determined by the Supreme Court independent from the conclusion reached by a trial court on the constitutional question.

2. Due Process: Criminal Law: Statutes: Notice. Due process requires that a penal statute supply adequate and fair notice of the conduct prohibited and also supply an explicit legislative standard defining the proscribed conduct, to prevent arbitrary and discriminatory enforcement at the discretion of law enforcement officials.

3. Statutes. A statute will not be deemed vague if it uses ordinary terms which find adequate interpretation in common usage and understanding.

4. Constitutional Law: Statutes. The doctrine of overbreadth pertains to a statute that is designed to burden, punish, or prohibit an activity that is not constitutionally protected, but which includes within its scope activities that are protected by the First Amendment to the U.S. Constitution.

5. Constitutional Law. Not all speech is protected by the First Amendment.

6. Constitutional Law. Speech protected by the First Amendment to the U.S. Constitution includes the free expression or exchange of ideas, the communication of information or opinions, and the dissemination and propagation of views and ideas, as well as the advocacy of causes.

7. Constitutional Law: States. A state may sometimes curtail speech when necessary to advance a significant and legitimate state interest.

8. Legislature: Public Health and Welfare: Courts: Appeal and Error. A legislature has discretion in determining what measures are reasonably necessary to protect public health, safety, and welfare, and a court, in reviewing a legislative act, should not substitute its own judgment for that of the legislature merely because the court may believe that the legislature acted unwisely or improvidently.

C. Jo Petersen, Seward County Atty., for appellant.

Dorothy A. Walker, of Mowbray & Walker, P.C., for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

SHANAHAN, Justice.

Authorized under Neb.Rev.Stat. § 29-2315.01 (Supp.1991), the State appeals from the decision of the district court for Seward County which dismissed the amended information that charged Robert Schmailzl with making a terroristic threat to certain persons in violation of Neb.Rev.Stat. § 28-311.01(1)(a) and (c) (Reissue 1989), a Class IV felony. The amended information charged that Schmailzl did "threaten to commit [a] crime of violence with the intent to terrorize another or in reckless disregard of the risk of causing such terror." Pursuant to Neb.Rev.Stat. § 29-1808 (Reissue 1989), Schmailzl moved to quash the amended information, facially challenging the constitutionality of § 28-311.01(1) on the ground that the statute is vague and overbroad in that it fails to define what conduct constitutes a threat and allows a felony conviction for threatened conduct which, if the threat were carried out, would be only a misdemeanor.

Section 28-311.01 provides:

(1) A person commits terroristic threats if he or she threatens to commit any crime of violence:

(a) With the intent to terrorize another;

(b) With the intent of causing the evacuation of a building, place of assembly, or facility of public transportation; or

(c) In reckless disregard of the risk of causing such terror or evacuation.

(2) Terroristic threats is a Class IV felony.

The district court concluded that § 28-311.01(1) "is vague and uncertain in that it fails to define as to what constitutes a threat" and "is overbroad in that it allows prosecution as a felony the threat to commit a misdemeanor crime of violence," infirmities which, in the district court's view, rendered the statute unconstitutional. Consequently, the district court quashed the amended information and dismissed the proceedings against Schmailzl.

On appeal, the State asserts that the district court erred in ruling that § 28-311.01 is unconstitutionally vague and overbroad.

STANDARD OF REVIEW

"Alleged unconstitutionality of a statute presents a question of law, which must be determined by the Supreme Court independent from the conclusion reached by a trial court on the constitutional question." State v. Crowdell, 234 Neb. 469, 471, 451 N.W.2d 695, 697 (1990). Accord State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. 262, 445 N.W.2d 284 (1989).

"Statutes are presumed to be constitutional, and unconstitutionality must be clearly established." Weiner v. State ex rel. Real Estate Comm., 217 Neb. 372, 374-75, 348 N.W.2d 879, 881 (1984). See, also, State v. Crowdell, supra; State v. LaChapelle, 234 Neb. 458, 451 N.W.2d 689 (1990); State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987). "One claiming that a statute is unconstitutional has the burden to show that the questioned statute is unconstitutional." State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. at 265, 445 N.W.2d at 288. Accord, State v. Crowdell, supra; State v. LaChapelle, supra.

VAGUENESS

"[D]ue process requires that a penal statute supply adequate and fair notice of the conduct prohibited and also supply an explicit legislative standard defining the proscribed conduct, to prevent arbitrary and discriminatory enforcement at the discretion of law enforcement officials." State v. Monastero, 228 Neb. 818, 833, 424 N.W.2d 837, 847 (1988). Accord State v. Crowdell, supra. Although "[s]tatutory notice governing behavior ' "must be unequivocal [such] requirement does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding." ' " Weiner v. State ex rel. Real Estate Comm., 217 Neb. at 375, 348 N.W.2d at 882 (quoting Gold v. Lomenzo, 29 N.Y.2d 468, 329 N.Y.S.2d 805, 280 N.E.2d 640 (1972)).

"The test for determining whether a statute is vague is whether it forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.... A statute will not be deemed vague if it uses ordinary terms which find adequate interpretation in common usage and understanding.... In determining whether a statute is vague and therefore does not give a defendant adequate notice that his conduct is proscribed, the statute must be examined in light of the conduct with which the defendant is charged....

"... The prohibition against vagueness does not invalidate a statute simply because it could have been drafted with greater precision. The test is whether the defendant could reasonably understand that his conduct was proscribed by the statute."

State v. Sailors, 217 Neb. 693, 695, 352 N.W.2d 860, 862 (1984) (quoting State v. Sprague, 213 Neb. 581, 330 N.W.2d 739 (1983)).

In State v. Hamilton, 215 Neb. 694, 340 N.W.2d 397 (1983), we held that Neb.Rev.Stat. § 28-311 (Reissue 1979), the former terroristic threats statute, was unconstitutionally vague and uncertain in part because that statute failed to define with sufficient specificity the nature of the threat which constituted proscribed conduct. However, in Hamilton, we noted that the terroristic threats statute significantly departed from § 211.3 of the Model Penal Code:

The language of the Model Penal Code is certainly much clearer than that adopted by the Nebraska Legislature. An actor violates the Model Penal Code when he or she threatens to commit any crime of violence, with the intent to terrorize another, regardless of what the outcome of the act will be or of how the victim receives the threat. The Model Penal Code seems to be fairly definite, and not speculative as is the statute in question.

215 Neb. at 698-99, 340 N.W.2d at 399-400.

Section 28-311.01, the current terroristic threats statute enacted in 1986, is a nearly verbatim version of § 211.3 of the Model Penal Code. Subsequent to enactment of § 28-311.01 in 1986, we commented in State v. Willett, 233 Neb. 243, 246, 444 N.W.2d 672, 674-75 (1989), that the language of § 28-311.01(1)(a) was "unequivocal" and that "when a person threatens to commit a crime of violence and has the intent to terrorize another as the result of the threat, he or she violates § 28-311.01(1)(a)." However, as Schmailzl correctly points out, in State v. Bourke, 237 Neb. 121, 124, 464 N.W.2d 805, 807 (1991), this court stated that "[t]he current law [§ 28-311.01 (Reissue 1989) ] provides no additional guidance as to what constitutes a threat." In Bourke, this court addressed only the constitutionality of § 28-311.01(1)(c), a threat to commit a crime of violence in " 'reckless disregard of the risk of causing such terror or evacuation' " of a building, place of assembly, or facility of public transportation. 237 Neb. at 123, 464 N.W.2d at 807. Bourke did not address the constitutionality of § 28-311.01(1)(a), a threat to commit any crime of violence with intent to terrorize another.

Several other state courts have held that the words "threat" or "threaten," when used in statutes similar to § 28-311.01(1), are neither vague nor uncertain. For example, in Lanthrip v. State, 235 Ga. 10, 11, 218 S.E.2d 771, 773 (1975), the Supreme Court of Georgia held that

[t]he unavoidable message of the express language contained in the statute is that one may not communicate to another person a threat to commit a crime of violence, for the purpose of terrorizing that person, without violating the statute. There are no hidden pitfalls or disguised traps into which the unwary may fall and commit the crime. The statute can be read and understood by a person of ordinary intelligence seeking to avoid its violation.

See, also, People v. Hines, 780 P.2d 556, 559 (Colo.1989) ("[a] threat is a statement of purpose or intent...