State v. Starsky

• Decision Date: 22 October 1970
• Docket Number: No. 2091,2091
• Citation: 475 P.2d 943,106 Ariz. 329
• Parties: STATE of Arizona, Plaintiff, v. Morris STARSKY, Defendant.
• Court: Arizona Supreme Court

Page 943

475 P.2d 943

106 Ariz. 329

STATE of Arizona, Plaintiff, v. Morris STARSKY, Defendant.

No. 2091.

Supreme Court of Arizona, In Banc.

Oct. 22, 1970.

Moise E. Berger, County Atty. by William Carter, Phoenix, for plaintiff.

Dushoff, Sacks & Corcoran by Jay Dushoff, LeRoy L. Miller, Phoenix, for defendant.

McFARLAND, Justice.

On May 27, 1968, Morris Starsky, hereinafter referred to as defendant, was charged in Justice Court, Tempe Precinct, County fo Maricopa with violation of A.R.S. § 13--371, Arizona's disorderly conduct statute. Following his conviction in Justice Court defendant appealed to Maricopa County Superior Court under A.R.S. § 22--371. Defendant moved in Superior Court to dismiss the complaint upon the grounds that A.R.S. § 13--371 is unconstitutional. The court granted the motion to dismiss with leave on the part of the state to refile.

The County Attorney then filed an Amended Criminal Complaint which is the subject of these proceedings. The Amended Complaint charges that defendant, on the 9th day of April, 1968, in Tempe Precinct, County of Maricopa, State of Arizona, did 'maliciously disturb the peace or quiet of a neighborhood, family, or person by tumultuous or offensive conduct or by applying violent, abusive or obscene epithets to another, all in violation of A.R.S. § 13--371.'

The defendant moved to quash the complaint on the grounds that it did not charge the defendant with a commission of an offense in that the statute upon which the complaint is predicated, A.R.S. § 13--371, subsections A, par. 2 and A, par. 4, is unconstitutionally void for vagueness and that the statute is an unconstitutional limitation on the defendant's freedom of speech.

Upon the agreement of the defendant and the State, the following question has been certified to this Court pursuant to Rule 346, Arizona Rules of Criminal Procedure, 17 A.R.S.:

'Does the Amended Complaint charge the defendant with an offense?'

Rule 346, Rules of Criminal Procedure reads as follows:

'Rule 346. When case to be certified

If upon a motion to quash an indictment or information or any count thereof, or if after verdict or finding of guilty but before sentence, any question of law arises which in the opinion of the trial court is so important and doubtful as to require the decision of the Supreme court, the trial court may, if the defendant consents, certify the case to the Supreme court so far as necessary to present the question of law arising therein, and thereupon all proceedings in the action shall be stayed to await the decision of the supreme court.'

The question certified to this court deals solely with the validity of A.R.S. § 13--371; no facts concerning the events were submitted.

A.R.S. § 13--371 reads as follows:

' § 13--371. Disturbing the peace; methods; punishment

A. A person is guilty of a misdemeanor who maliciously and wilfully disturbs the peace or quiet of a neighborhood, family or person by:

1. Loud or unusual noise.

2. Tumultuous or offensive conduct.

3. Threatening, traducing, quarreling, challenging to fight or fighting.

4. Applying any violent, abusive or obscene epithets to another.

B. A person who violates this section shall be punished by a fine not exceeding two hundred dollars, or by imprisonment in the county jail for not to exceed two months.'

Defendant first contends that A.R.S. § 13--371 is unconstitutionally void for vagueness stating that it does not give the defendant fair warning of the proscribed conduct. In State v. Locks, 97 Ariz. 148, 397 P.2d 949, this court held:

'The law must be definite and certain so that the same standard of conduct may be applied by all persons affected. The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes, the mandates of which are so uncertain that they will admit to different constructions. The crime and the elements constituting it must be so clearly expressed that the ordinary person can intelligently choose in advance what course it is lawful for him to pursue. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; State v. Tsutomu Ikeda et al, 61 Ariz. 41, 143 P.2d 880; State v. Menderson, 57 Ariz. 103, 111 P.2d 622; State v. Jay J. Garfield Bldg. Co., 39 Ariz. 45, 3 P.2d 983.'

It is a doctrine well recognized by this court that for a criminal statute to be unconstitutional for vagueness it must be so vague as to fail to give a citizen notice of what conduct on his part will lead to its violation.

But the standards of definiteness and certainty cannot be so extended as to impose an impossible burden on the drafters of legislation.

'* * * The Constitution has erected procedural safeguards to protect against conviction for crime except for violation of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.' United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877, 1883.

The statute here clearly apprises a person that certain conduct, when done maliciously and wilfully, is punishable and it does so in words easily understood and definable. It has been the law of this State, in substantially the same form, for sixty-nine years. (Laws of 1901, § 379) and before that, its progenitor was the law in California for another fifty-one years (West's Ann.Penal Code § 415; Cal.Stats. 1850, Ch. 99, § 112).

Concededly the ancientness of a statute is not dispositive of its constitutionality but it is a fact to be considered in determining the public's awareness of its existence and general knowledge of the conduct which it proscribes. The California Supreme Court, although negating a petitioner's conviction on the grounds of faulty jury instructions, upheld that state's statute against the same charges as are here leveled at our statute:

'Section 415 is not unconstitutionally vague and overbroad. It has a commonly understood meaning that not only affords adequate notice of the type of conduct that is proscribed, but also precludes its application to conduct protected by the First Amendment. The part of the section under which petitioner was convicted provides: 'Every person who maliciously and willfully disturbs the peace or quiet of any * * * person * * * by tumultuous or offensive conduct * * * is guilty of a misdemeanor.' The terms 'disturb the peace' and 'breach of the peace,' which are substantially synonymous, have long been understood to mean disruption of public order by acts that are themselves violent or that tend to incite others to violence. Thus, one may be guilty of disturbing the peace within that part of section 415 if he engages in 'tumultuous' conduct, i.e., violent conduct that wilfully and maliciously endangers public safety or order. He may also be guilty of disturbing the peace through 'offensive' conduct if by his actions he wilfully and maliciously incites others to violence or engages in conduct likely to incite others to violence. (People v. Cohen (1969) 1 Cal.App.3d 94, 101, 81 Cal.Rptr. 503.)' In Re Bushman, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727.

Of course the principle of 'Fairplay' underlying the Due Process Clause will not condone the drafting of a penal law which is so vague and uninformative that the general public cannot glean what evil the legislature intended to guard against; or only guess at what conduct falls within the pale of its prohibition. On the other hand to enunciate the statute with the degree of definiteness sought by the defendant would require specific definitions of each term which would no doubt necessitate further definitions of the definitions, ad infinitum--so that each section of the criminal code would be a thesaurus of definitions, synonyms and examples. Neither the United States Constitution, the constitutions of the several states, nor even the Magna Carta could withstand the severity of this test.

In conjunction with the claim that the statute is vague and overbroad, the defendlant contends that it also 'brings within its scope speech which is constitutionally protected' by the First Amendment to the United States Constitution. He places particular emphasis on the term 'obscene' which has stubbornly resisted a scientific definition for decades. ¹ But we are not here faced with the complexities of the sexual connotation of 'obscene' as used in obscenity statutes and applied to literature or the theater. Here the term is used to describe a type of 'epithet'; in other words an obscene adjective, a vulgarity, a profanity or, in plain terms--'cuss words'. It would be inane to apply the constitutional standard of Roth, infra, Footnote 1, to determine if it appealed to prurient interests and even more ridiculous to seek in such activity a redeeming social value, much less any intellectual support for a protagonist's argument.

The value of such speech and its exclusion from constitutional protection were set forth in ...