State v. Zuanich, s. 45363

• Decision Date: 26 April 1979
• Docket Number: 45424-45427,Nos. 45363,45397,s. 45363
• Citation: 593 P.2d 1314,92 Wn.2d 61
• Parties: STATE of Washington, Appellant, v. Kathleen ZUANICH, Respondent. STATE of Washington, Appellant, v. Linday Gail HANSEN, Respondent. STATE of Washington, Appellant, v. Sandra Faith BOHENSTIEL, Respondent. STATE of Washington, Appellant, v. Shirley FRENCH, Respondent. STATE of Washington, Appellant, v. Gary Lee WARDELL, Respondent. STATE of Washington, Appellant, v. John O'NEILL, Respondent. STATE of Washington, Appellant, v. Larry FECTEAU et al., Respondents. STATE of Washington, Appellant, v. John BRANDES, Respondent.
• Court: Washington Supreme Court

Page 61

92 Wn.2d 61

593 P.2d 1314

STATE of Washington, Appellant, v. Kathleen ZUANICH, Respondent.

STATE of Washington, Appellant, v. Linday Gail HANSEN, Respondent.

STATE of Washington, Appellant, v. Sandra Faith BOHENSTIEL, Respondent.

STATE of Washington, Appellant, v. Shirley FRENCH, Respondent.

STATE of Washington, Appellant, v. Gary Lee WARDELL, Respondent.

STATE of Washington, Appellant, v. John O'NEILL, Respondent.

STATE of Washington, Appellant, v. Larry FECTEAU et al., Respondents.

STATE of Washington, Appellant, v. John BRANDES, Respondent.

Nos. 45363, 45397, 45424-45427.

Supreme Court of Washington, En Banc.

April 26, 1979.

David McEachran, Pros. Atty., Philip Serka, Deputy Pros. Atty., Bellingham, Norm Maleng, Pros. Atty., Mary Kay Barbieri, Deputy Pros. Atty., Seattle, Michael Slish, Kent, Gaither Martin Kodis, Michael Alfieri, Seattle, for appellant.

Kathleen Zuanich, pro se.

P. J. Sferra, Bryan Ward, Seattle, Tway & Rowe, Boise, Idaho, Brett & Daugert, Dean Brett, Bellingham, C. J. Henderson, Clarkston, for respondents.

DOLLIVER, Justice.

A single question is presented by these appeals: Is RCW 9A.88.030 unconstitutionally void for vagueness? In each instance, these cases were dismissed prior to trial so that no factual determination was made as to the precise conduct in which defendants were engaged. We hold RCW 9A.88.030 to be constitutional and reverse the trial courts.

It is important to understand the focus of defendants' case. They do not complain the statute is vague only as applied to their conduct or the hypothetical conduct of others. See Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); State v. Hegge, 89 Wash.2d 584 574 P.2d 386 (1978). Rather, each defendant alleges the term "sexual conduct" in RCW 9A.88.030 is impermissibly vague and that the statute on its face is unconstitutionally void for vagueness. Since they attack the statute under which they have been accused as vague and with no standards regardless of their conduct, they have standing. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Bellevue v. Miller, 85 Wash.2d 539, 536 P.2d 603 (1975).

The test for vagueness under these circumstances is well described in Bellevue v. Miller, supra, where we held that, although a statute may be "potentially vague as to some conduct, (it) may nevertheless be constitutionally applied to one whose act clearly falls within the statute's 'hard core.' "

The test of RCW 9A.88.030, the prostitution statute, is:

(1) A person is guilty of prostitution if such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

(2) Prostitution is a misdemeanor.

Defendants Zuanich, Hansen and Bohenstiel were charged under it.

RCW 9A.88.080, the promoting prostitution statute reads:

(1) A person is guilty of promoting prostitution in the second degree if he knowingly:

(a) Profits from prostitution; or

(b) Advances prostitution.

(2) Promoting prostitution in the second degree is a class C felony.

Defendants Brandes, Wardell, Ross, Fecteau, O'Neill and French were charged under it. As can be seen, the validity of RCW 9A.88.080 depends upon the constitutionality of RCW 9A.88.030. Is there a "hard core" to the meaning of "sexual conduct" which will save RCW 9A.88.030 from constitutional attack?

Among his affidavits, defendant Brandes submits a "poll" conducted among 104 persons "encountered at random in the University District of Seattle". It purports to illustrate an inability of what are denoted "citizens of common intelligence" to "distinguish between innocent sexual activity and 'sexual conduct' in the context of the state prostitution laws." A variety of questions are asked as to whether certain activities are sexual conduct. As is the case in most polls conducted to prove a point, the answers are prefigured by the questions. The one question which defendants neglect to ask is whether heterosexual genital intercourse is sexual conduct. While there may be some pre-Fall Eden in which this question could not be answered affirmatively to argue that heterosexual genital intercourse is not sexual conduct is a doctrine to which no reasonable person could ascribe. Nor can it reasonably be asserted that legislative intent to include heterosexual genital intercourse within the meaning of sexual conduct is not clear on the face of the statute.

Since 1967, New York State has had a statute on prostitution as follows:

A person is guilty of prostitution (if) when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

Prostitution is a (misdemeanor.) class B Misdemeanor.

N.Y Penal Law § 230.00 (39 McKinney, 1977-78 Supp. at 67). Except for the word "when" instead of the word "if", and the insertion of "class B", the Washington and New York statutes are identical. The precise question of whether the term "sexual conduct" as used in the New York statute is unconstitutionally vague has been addressed by the United States Court of Appeals for the Second Circuit. In United States v. Herrera, 584 F.2d 1137, 1149 (2d Cir. 1978), the court stated:

This prohibition against excessive vagueness does not, however, invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for "in most English words and phrases there lurk uncertainties." Robinson v. United States, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944 (1945). All the Due Process clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden, and thus not lull the potential defendant into a false sense of security, giving him no reason even to suspect that his conduct might be within its scope. 3 Even in criminal cases where the vagueness standard is more stringently applied, the statute must only present "ascertainable standards of guilt." Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1944); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947).

We have little doubt that the New York statute is not so vague that "men of common intelligence must necessarily guess at its meaning." Connelly v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). We do not believe that the defendants were "required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). The New York statute clearly places men of reasonable intelligence on notice that they cannot promote prostitution. The definition of prostitution as being a person who engages or agrees or offers to engage in sexual conduct with another person in return for a fee is not so vague as to make persons of common intelligence guess at its meaning. Although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that can be sufficiently understood and complied with by the ordinary person exercising ordinary common sense. Moreover, even if the outermost boundaries of the statute may be imprecise, any such uncertainty has little relevance here where the defendants' conduct falls squarely within the "hard core" of the statute's proscriptions. See Broadrick v. Oklahoma, (413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Robinson v. United States, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944 (1945); United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1934).

In People v. Costello, 90 Misc.2d 431, 395 N.Y.S.2d 139 (Sup.Ct.N.Y.Cty.1977), Costello's argument that his conviction for promoting prostitution should be set aside because the phrases "sexual conduct" and "fee" are unconstitutionally vague was rejected by the court. We believe the statute establishes standards of guilt, at least as definite as those which withstood the same constitutional challenge in People v. Capparelli, 29 A.D.2d 1000, 289 N.Y.S.2d 499 (1968), affirmed, 25 N.Y.2d 832, 303 N.Y.S.2d 685 (1969); and in Rose v. Locke, (423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975)), and, accordingly, is constitutional.

Furthermore, in a recent case we had occasion to consider a statute relating to a sex crime where the arguments as to vagueness were considerably more substantial than they are here.

In State v. Carter, 89 Wash.2d 236, 570 P.2d 1218 (1977), the defendant argued the pimping statute then in effect was unconstitutionally vague on its face. That statute, RCW 9.79.060, provided:

Every person who

(3) Shall give, offer, or promise any compensation, gratuity or reward, to procure any person for the purpose of placing such person for Immoral purposes in any house of prostitution, or elsewhere; . . .

Shall be punished by imprisonment in the state penitentiary for not less than one year nor more than five years.

(Italics ours.)

In response to the argument as to vagueness, we said:

Appellant alleges the words "immoral purposes" found in RCW 9.79.060(3) did not sufficiently define the conduct sought to be proscribed as criminal and thus RCW 9.79.060(3) must be declared unconstitutionally vague. The requirement that criminal legislation be definite in language is premised on two considerations. First, the statute must provide fair notice, measured by common practice and understanding, of that conduct which is prohibited, so that persons of reasonable understanding are not required to guess at the meaning of ...