State v. Smith

Decision Date14 July 1988
Docket NumberNo. 54067-5,54067-5
Citation759 P.2d 372,111 Wn.2d 1
PartiesThe STATE of Washington, Respondent, v. Brandon J. SMITH, Petitioner.
CourtWashington Supreme Court

Dale A. McBeth, Chehalis, for petitioner.

James R. Miller, Lewis County Prosecutor, Hugh K. Birgenheier, Sp. Deputy, Chehalis, for respondent.

Lenell Nussbaum on behalf of Washington Appellate Defender Ass'n, amicus curiae for petitioner.

DURHAM, Justice.

This case addresses the constitutionality of Washington's "harassment" statute. Enacted in 1985 with the aim of preventing "acts and threats which show a pattern of harassment designed to coerce, intimidate, or humiliate the victim", RCW 9A.46.010, this statute provides:

A person is guilty of harassment if:

(a) Without lawful authority, the person knowingly threatens:

(i) To cause bodily injury in the future to the person threatened or to any other person; or

(ii) To cause physical damage to the property of a person other than the actor; or

(iii) To subject the person threatened or any other person to physical confinement or restraint; or (iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and

(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.

RCW 9A.46.020(1).

The harassment statute is part of a multifaceted remedial scheme the Legislature established to protect citizens from harmful harassing behavior. Two other criminal harassment statutes, already in place at the time RCW 9A.46.020 was enacted, address aggression and intimidation motivated by bigotry or other prejudices, RCW 9A.36.080 ("malicious harassment"), and certain forms of harassment, intimidation, torment or embarrassment effected by telephone, RCW 9.61.230. In addition, observing that the problem of harassment is one of increasing severity, the Legislature just last year established mechanisms to improve civil antiharassment protection. RCW 10.14. Washington law thus provides a "full spectrum of legal remedies, both civil and criminal, legal and equitable" designed "to provide meaningful relief in the myriad situations where harassment occurs." Note, A Remedial Approach to Harassment, 70 Va.L.Rev. 507, 514 (1984).

Petitioner Brandon Smith challenges this remedial scheme. He complains that RCW 9A.46.020 is not comprehensible to persons of ordinary understanding, and that it is susceptible of arbitrary and discriminatory enforcement. Thus, he asks that we declare the statute void under the constitutional doctrine of "void for vagueness". Because we do not find the harassment statute to be constitutionally infirm in the way Smith suggests, we uphold the statute and affirm Smith's conviction under it.

I

The stipulated facts are as follows: In the midafternoon of May 25, 1985, Smith appeared at the home of Pam Romine 1 and knocked on the front door. When Romine answered, he grabbed her by the throat and dragged her outside to the porch. Smith made several threats against Romine, at one point stating, "consider yourself dead". He also told Romine that he was going to kill her housemates.

Smith next pushed Romine toward and then into his car, where he pointed out to her a rifle lying on the back seat. He made further death threats, including a threat to blow up Romine's house. Romine broke free, ran to her own car, and drove away.

Romine drove to her fiance's workplace and after conversing with him, drove to a nearby shopping center where Smith again confronted her. Romine told him to stay away from her and said she had called the sheriff. Smith responded that he was not afraid of the sheriff and would kill the sheriff and blow up Romine's house. Romine then filed a complaint with the sheriff's office and deputies arrested Smith later in the day.

Smith was charged with simple assault, criminal trespass and harassment. The Lewis County District Court dismissed the harassment charge on vagueness grounds but proceeded to trial on the other counts, resulting in convictions. On the State's appeal, the Lewis County Superior Court reversed the dismissal of the harassment charge and remanded to the District Court for trial, resulting in a conviction on that count as well. The harassment conviction was then affirmed by the Superior Court and, on discretionary review, by the Court of Appeals. State v. Smith, 48 Wash.App. 33, 737 P.2d 723 (1987). We granted the petition for review.

II

The due process doctrine of "void for vagueness" Smith invokes has two central principles. First, criminality must be defined with sufficient specificity to put citizens on notice as to what conduct they must avoid. Second, legislated crimes must not be susceptible of arbitrary and discriminatory law enforcement. State v. Brayman, 110 Wash.2d 183, 196, 751 P.2d 294 (1988); Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983). When a criminal statute fails to abide these requirements, we will hold it void and reverse a conviction obtained under it. See, e.g., Bellevue v. Miller, 85 Wash.2d 539, 536 P.2d 603 (1975).

We do not apply this doctrine casually, however. In recognition of the Legislature's constitutional lawmaking role, see Const. art. 2, § 1, we approach a vagueness challenge with a strong presumption in favor of the statute's validity. State v. Maciolek, 101 Wash.2d 259, 263, 676 P.2d 996 (1984). Thus, "the party challenging the constitutionality of a legislative enactment has the burden of proving it is unconstitutionally vague ... beyond a reasonable doubt." (Citations omitted.) Maciolek, at 263, 676 P.2d 996.

Smith's complaint about RCW 9A.46.020 focuses on but three words in the statute: "[w]ithout lawful authority". Analogizing to cases in which we have deemed unconstitutionally vague statutes and ordinances containing such phrases as "lawful order", "without lawful purpose", and "without lawful excuse", Smith contends that the words "without lawful authority" leave uncertain the scope of the proscriptions stated in the harassment statute and allow police, prosecutors and juries to enforce the statute in a subjective and ad hoc manner. Thus, Smith asserts, the statute is unconstitutionally vague on its face and void.

A

Before explaining more fully our rejection of Smith's challenge, we will discuss briefly some conceptual difficulties we have in accepting his argument. Smith asks this court to hold that what is "lawful" is not something a person of common understanding can comprehend. And he asks us to declare that the concept of "lawfulness" fails to provide minimal guidelines to prevent arbitrary or discriminatory law enforcement. The former assertion would stand in sharp contradiction to the well-settled maxim that "ignorance of the law excuses no one". The latter would confess a lack of confidence in the most basic operations of our systems of justice.

Rather than persuading, therefore, Smith's argument puts us on our guard. Justice Cardozo long ago observed approvingly "the tendency of precedent to extend itself along the lines of logical development." B. Cardozo, The Nature of the Judicial Process

Page 34

(1921), reprinted in Selected Writings of Benjamin Nathan Cardozo 107, 118 (M. Hall ed. 1947). Taking in view Smith's argument, and within it our own holdings and opinions, we now ask: Is it truly within the limit of our cases' logic that the concept of "lawfulness" may not be employed as part of a well-stated criminal statute?

We will now make clear, if we have failed to do so before, that the answer to this question is "no". None of our decisions, fairly read, establishes that the concept of "lawfulness" is inherently unconstitutionally vague. We have found the concept problematic in some cases only because of the context in which it has been used.

The importance of context is illustrated in our recent decision in State v. Aver, 109 Wash.2d 303, 745 P.2d 479 (1987). There, we upheld against a vagueness challenge a statute proscribing obstruction of a "lawfully operated train". Focusing on the context in which the word "lawfully" was used, we determined that the statute is sufficiently definite to put citizens on notice as to what conduct it forbids.

RCW 81.48.020 forbids a definite course of conduct--willfully obstructing, hindering or delaying the passage of a train. The proscribed activity being clearly stated, the defendants cannot claim constitutional confusion as to the lawfulness of the operation of the train.

Aver, at 308, 745 P.2d 479.

To a great extent, Smith stands in a very similar position as did the defendants in Aver. He cannot deny that RCW 9A.46.020 defines with specificity the conduct it proscribes. He challenges only the portion of the statute which permits the otherwise forbidden behavior. While similar "escape clauses" have been deemed so vague as to be unconstitutional, e.g., State v. Richmond, 102 Wash.2d 242, 683 P.2d 1093 (1984) ("without lawful excuse" in child support statute); State v. Hilt, 99 Wash.2d 452, 662 P.2d 52 (1983) ("without lawful excuse" in bail jumping statute); State v. White, 97 Wash.2d 92, 640 P.2d 1061 (1982) ("without lawful excuse" in "stop-and-identify" statute); Seattle v. Rice, 93 Wash.2d 728, 612 P.2d 792 (1980) ("lawful order" in trespass ordinance); Bellevue v. Miller, 85 Wash.2d 539, 536 P.2d 603 (1975) ("unlawful purpose" in wandering and prowling ordinance), we cannot say that such a clause is always improper when its operative meaning is defined by the concept of "lawfulness".

B

Turning to the applicability of the vagueness doctrine in this case, we address first the doctrine's notice principle. The basic rule is familiar: a statute will be deemed unconstitutionally vague if "persons of common intelligence must necessarily guess at its meaning and differ as to its application." State v. White, supra 97 Wash.2d at 98-99, ...

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