State v. Tibor

• Decision Date: 04 September 1985
• Docket Number: Cr. N
• Citation: 373 N.W.2d 877
• Parties: The STATE of North Dakota, Plaintiff, Appellant and Cross-Appellee, v. Gerard TIBOR, Defendant, Appellee and Cross-Appellant. o. 1076.
• Court: North Dakota Supreme Court

Page 877

373 N.W.2d 877

The STATE of North Dakota, Plaintiff, Appellant and Cross-Appellee, v. Gerard TIBOR, Defendant, Appellee and Cross-Appellant.

Cr. No. 1076.

Supreme Court of North Dakota.

Sept. 4, 1985.

Bruce B. Haskell, argued, Asst. State's Atty., Mandan, for plaintiff, appellant and cross-appellee. Appearance by Richard Schnell.

Mark L. Greenwood, argued, Greenwood & Greenwood, Dickinson, for defendant, appellee and cross-appellant.

LEVINE, Justice.

Gerard Tibor was charged with gross sexual imposition in violation of North Dakota Century Code Sec. 12.1-20-03(2). Tibor made a motion supported by affidavit and brief for dismissal on the ground his prosecution was barred by NDCC Sec. 12.1-20-01(3) because the alleged offense had not been timely reported. The State resisted the motion by brief without supporting affidavit. No hearing was requested or held. The trial court denied the motion. Tibor moved for reconsideration and submitted additional affidavits. There was no response from the State. That motion also was denied summarily. Subsequently, the trial court granted a third motion by Tibor and dismissed the prosecution upon finding Sec. 12.1-20-03(2)(a) unconstitutionally vague and overbroad.

The State appeals the dismissal and Tibor cross-appeals from the denial of the original motions to dismiss. ¹ We reverse and remand for proceedings in accordance with this opinion.

1. Standing

The first issue on appeal is whether or not the district court erred in finding NDCC Sec. 12.1-20-03(2)(a) unconstitutionally vague and overbroad. ²

The State argues the district court erred in reaching its conclusion because Tibor lacked standing to raise these constitutional claims. We agree.

A party is entitled to have a court decide the merits of a dispute only after demonstrating he has standing to litigate the issues placed before the court. State v. Carpenter, 301 N.W.2d 106 (N.D.1980). In this case, to determine whether Tibor has standing to raise the constitutional issues it is necessary to distinguish vagueness from overbreadth, because there may be standing to assert one and not the other.

A law is void for vagueness if it lacks "ascertainable standards of guilt," Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948), such that it either 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." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); see also State v. Carpenter, supra; State v. Woodworth, 234 N.W.2d 243 (N.D.1975). Vague laws offend due process because they violate the two essential values of fair warning and nondiscriminatory enforcement:

"First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Secondly, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application." Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). [Footnotes omitted.]

See also Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

The doctrine of overbreadth, on the other hand, prohibits the law from criminalizing constitutionally protected activity:

"A governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarilly broad and thereby invade the area of protected freedoms." Zwickler v. Koota, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967).

See also, Village of Hoffman Estates v. Flipside, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); State v. Carpenter, supra.

The doctrines of vagueness and overbreadth are thus distinct in that an overbroad statute may be clear and precise in penalizing protected activities, while an unconstitutionally vague statute need not even reach protected activities. See L. Tribe, American Constitutional Law, Sec. 12-28 (1978).

Because the two doctrines can guard against differing constitutional infirmities, each can have differing requirements for standing. To have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the statute in question is vague as applied to his own conduct, without regard to its potentially vague application in other circumstances. ³ Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); City of Fargo v. Windmill, Inc., 350 N.W.2d 32 (N.D.1984). In contrast, in several circumstances an overbreadth claimant may be allowed to assert the rights of third persons to whom the challenged law could conceivably apply in a manner that would violate their constitutional rights. See Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); State v. Unterseher, 255 N.W.2d 882 (N.D.1977) (a litigant may assert only his constitutional rights unless he can present "weighty countervailing policies"); Annot. 50 L.Ed.2d 902 (1978); Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423 (1974). A litigant claiming a statute is overbroad is allowed to assert third-party standing, when a party asserting a law is void for vagueness may not, because in certain situations individuals adversely affected by an overbroad statute are unable to protect their rights by themselves. E.g., NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

We conclude Tibor has no standing to challenge NDCC Sec. 12.1-20-03(2)(a) as being void for vagueness. Section 12.1-20-03(2)(a) does not regulate or proscribe speech protected by the first amendment, and Tibor has not shown Sec. 12.1-20-03(2)(a) to be impermissibly vague in all of its applications. ⁴ Flipside, supra; see also Coates, supra (the law must be such that no standard of conduct is specified at all).

Furthermore, Tibor has not shown that he is being prosecuted under Sec. 12.1-20-03(2)(a) for such hypothetically unconstitutionally vague applications of Sec. 12.1-20-03(2)(a) as "changing his baby's diapers" or "kissing, hugging or roughhousing with his children." Consequently, because Tibor has not demonstrated that Sec. 12.1-20-03(2)(a) is impermissibly vague as applied to him, he has no standing to raise such a constitutional claim. ⁵ Parker, supra; Windmill, Inc., supra.

Nor has Tibor established either personal or third-party standing to attack NDCC Sec. 12.1-20-03(2)(a) on the ground of overbreadth. Tibor has not shown that the conduct he engaged in, and for which he was prosecuted, is constitutionally protected activity, such as "hugging his children." See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (parents' interests in the companionship, care, custody, and management of children warrants particular respect). Therefore he does not have standing to attack Sec. 12.1-20-03(2) as being unconstitutionally overbroad as applied to his conduct. Furthermore, although the overbreadth doctrine permits litigants to assert third-party standing in certain circumstances, none of these circumstances exists here.

The Supreme Court recognizes three overbreadth situations that justify third-party standing. First, it exists where there is a close relationship between the litigant's rights and the rights of a third party such that the litigant is fully, or very nearly, as effective a proponent of those rights as the third party. See, e.g., Wulff, supra; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Second, there is standing when individuals not parties to a particular suit stand to lose by the outcome of litigation and yet have no effective way of preserving their rights themselves. See, e.g., Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586, (1953). Third, there is third-party standing when the challenged law allegedly infringes upon speech protected by the first amendment. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

Tibor has not shown that any of these three exceptions to the general rule against third-party standing exist in this case. He has not demonstrated any close relationship with hypothetical third parties or that any third party would be adversely affected by the outcome of this case. Nor does NDCC Sec. 12.1-20-03(2)(a) infringe upon speech or conduct protected by the first amendment.

Tibor has failed to establish any factual basis that Sec. 12.1-20-03(2)(a) is vague in all its applications or as applied to him. He has also failed to demonstrate that the statute is overbroad as applied to his conduct, there being nothing in the record before us that he is being prosecuted for constitutionally protected conduct. Nor has he established the requisites for third-party standing.

Absent standing in Tibor to raise the constitutional issues, the trial court erred in deciding them, and dismissing the lawsuit. The judgment of dismissal is therefore reversed and the case remanded.

2. Tibor's Cross-Appeal

Section 12.1-20-01(3), NDCC, reads:

"No prosecution may be instituted or maintained under sections 12.1-20-03 through 12.1-20-08 or section 12.1-20-12 unless the alleged offense was brought to the notice of public authority within three months of its occurrence or, where the alleged victim was a minor or otherwise incompetent to make complaint, within three months after a parent, guardian, or other competent person...