Stock v. State, 2007
| Decision Date | 30 August 1974 |
| Docket Number | No. 2007,2007 |
| Citation | 526 P.2d 3 |
| Parties | Dave STOCK, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.
Dave Stock appeals his conviction resulting from the first trial under the Alaska Environmental Conservation Act. 1
Stock contends that:
(1) The statute under which he was convicted is unconstitutionally vague;
(2) The state failed to comply with AS 46.03.130 by bringing a criminal action before completing administrative proceedings;
(3) There was a failure of proof that he was personally liable for pollution caused by the corporation of which he is president;
(4) The penalty provisions of AS 46.03.760 and AS 46.03.790 violate the equal protection and due process clauses of the United States and Alaska constitutions.
Stock was charged with having polluted the waters of the state on July 27, 1972 by contaminating Duck Creek with improperly treated sewage from the Sprucewood Trailer Court in a manner which made Duck Creek a potential health and safety hazard in violation of AS 46.03.710. He was found guilty after a jury trial and sentenced under AS 46.03.790 2 to a 30-day suspended imprisonment and a $1,000 fine.
Upon appeal to the superior court, the conviction was affirmed, but Judge Carlson found that since there was no allegation of wilfulness, Stock should not have been sentenced under AS 46.03.790. The case was remanded for sentencing under AS 46.03.760. 3 Stock has appealed the judgment of the superior court.
The evidence at trial demonstrated that for a considerable period of time during the summer of 1972, the sewer facilities at the Sprucewood Trailer Court did not function, so that a lagoon of raw sewage developed in the area which was intended to be a septic tank leach field. Color slides of the lagoon were shown to the jury. From the lagoon, a man-made ditch drained raw sewage directly into Duck Creek. Duck Creek, a small stream which meanders through residential areas, is classified as water to be kept safe for drinking purposes. Expert testimony established that there was high but not dangerous coliform bacteria count in Duck Creek above Sprucewood; however, the coliform count was multiplied by a factor of 10 below Sprucewood, a result which, according to the opinion of environmental pollution experts, was probably caused by the sewage discharge. Eyewitness testimony established that the drainage ditch had been closed during mid-July, but on the day of the violation it had been reopened and 'dug out'. The lagoon, ditch and Duck Creek constituted a health and safety hazard to children playing in the water of the creek.
Stock was prosecuted for violating AS 46.03.710 which states that, 'No person may pollute or add to the pollution of the air, land, subsurface land or water of the state.'
The term 'pollution' is defined in AS 46.03.900(15) as meaning:
. . . the contamination or altering of waters, land or subsurface land of the state in a manner which creates a nuisance or makes waters, land or subsurface land unclean, or noxious, or impure, or unfit so that they are actually or potentially harmful or detrimental or injurious to public health, safety or welfare, to domestic, commercial, industrial or recreational use, or to livestock, wild animals, bird, fish, or other aquatic life; 4
Stock contends that the definition is so vague that men of ordinary intelligence could not know within the bounds of reasonable certainty which activities are proscribed by AS 46.03.710, and that consequently the statute violates the due process clauses of the United States and Alaska constitutions. 5
We discussed the void for vagueness doctrine extensively in Marks v. City of Anchorage, 6 wherein a declaratory judgment was granted holding that a disorderly conduct ordinance was void. There are three considerations in determining whether a statute is unconstitutionally vague. First, if the statute is overbroad so that it may be construed in a manner to restrict the exercise of first amendment rights, it may be found to be invalid. 7 A statute may not create a threat of criminal penalties which might inhibit the exercise of those basic rights so essential to our form of government such as freedom of speech, press, religion and to assemble peaceably. But we are not here confronted with a threat to the exercise of those fundamental constitutional rights. Here the acts charged by the complaint relate to economic activities-disposal of sewage by a developer of a trailer court-and, therefore, the authorities concerned with possible 'overbreadth' of allegedly vague statutes are not pertinent. 8
The second consideration is that a statute must give adequate notice to the ordinary citizen of what is prohibited. This principle involves basic fairness and was long ago enunciated by the United States Supreme Court in Connally v. General Construction Co., 9 stating:
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a wellrecognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which 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 violates the first essential of due process of law.
A statute in its broad contours may be subject to criticism for failure to give adequate notice as to all types of conduct which are punishable, but, when not involved with the 'overbreadth' problem, may still pass muster if: (a) three can be no question as to its applicability to the particular offense involved, 10 and (b) a construction may be placed upon the statute so that in the future the type of offenses coming within its purview may reasonably be understood. 11
The third element of analysis in vagueness problems is whether the statute gives undue discretion to prosecuting authorities in determining what constitutes the crime. This can lead to arbitrary enforcement against persons who, due to their particular life styles or other factors, incur the ire of those empowered to determine who shall be prosecuted. There is, of course, a wide discretion inherent in any criminal statute as to who shall be prosecuted. Thus, one police officer may give a warning to a person travelling 60 m. p. h. in a 55 m. p. h. zone, while another may arrest a driver travelling at a like speed. Such lack of uniformity is not based on any difficulty in statutory language, but is innate in any criminal justice system involving human rather than computer controls. 12 But when inexactitude of statutory language has invited arbitrary enforcement so that there has been a history or a strong likelihood of uneven application, laws have been stricken as unconstitutional. 13
In the recent case of Smith v. Goguen, 14 the defendant had been charged with 'contemptuously' treating the flag by wearing a small cloth replica on the seat of his trousers. Justice Powell speaking for the majority of the Court, stated:
In its terms the language at issue is sufficiently unbounded to prohibit, as the District Court noted, 'any public deviation from formal flag etiquette. . . .' . . . Unchanged throughout its 70-year history, the 'treats contemptuously' phrase was also devoid of a narrowing state court interpretation at the relevant time in this case. We are without authority to cure that defect. Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. . . . In Gregory v. City of Chicago, 394 U.S. 111, 120, 89 S.Ct. 946, 951, 22 L.Ed.2d 134 (1969), Mr. Justice Black voiced a concern that we share against entrusting lawmaking 'to the moment-to-moment judgment of the policeman on his beat.' 15
We must apply the foregoing three general considerations to the statute in question. At least as far as here applied, we are concerned with a commercial activity-the disposal of sewage from a trailer court. At the outset, therefore, we noted that this is not a case involving 'overbreadth' and possible chilling of first amendment rights.
The second applicable criterion, failure to give adequate notice to the ordinary citizen as to what acts are prohibited, requires a more detailed analysis of both the nature of the act for which stock was convicted and the statutory definition of pollution. AS 46.03.900(15) provides:
'pollution' means the contamination or altering of waters, land or subsurface land of the state in a manner which creates a nuisance or makes waters, land or subsurface land unclean, or noxious, or impure, or unfit so that they are actually or potentially harmful or detrimental or injurious to public health, safety or welfare, to domestic, commercial, industrial, or recreational use, or to livestock, wild animals, bird, fish, or other aquatic life; . . .
Whatever may be the outer boundaries of conduct prohibited by AS 46.03.710 as defined by AS 46.03.900(15), it is beyond dispute that the emptying of a lagoon of raw sewage into a stream running through residential areas comes within the definition of the term 'pollution'. In fact, in oral argument, Stock's counsel candidly admitted that the conduct with which his client was charged came within the prohibition of the statute and that one of ordinary intelligence would know that such conduct was prohibited. His complaint in this respect refers to possible applications of the statute to other...
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