Switzer v. City of Tulsa, M-78-563

• Decision Date: 19 July 1979
• Docket Number: No. M-78-563,M-78-563
• Parties: Y. C. SWITZER, Appellant, v. The CITY OF TULSA, Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 247

598 P.2d 247

Y. C. SWITZER, Appellant, v. The CITY OF TULSA, Oklahoma, Appellee.

No. M-78-563.

Court of Criminal Appeals of Oklahoma.

July 19, 1979.

An appeal from the Municipal Court, City of Tulsa; M. J. Carson, Judge.

Y. C. Switzer, appellant, as convicted of the offense of Loitering Where Gambling is Conducted; was assessed a fine of Twenty-Five Dollars ($25.00), and appeals. REVERSED and REMANDED with instructions to DISMISS.

Ed Parks, Boyd & Parks, Tulsa, for appellant.

Waldo F. Bales, City Atty., Richard J. Kallsnick, Asst. City Atty., Tulsa, for appellee.

OPINION

CORNISH, Presiding Judge:

Y. C. Switzer, the appellant, was convicted in the Municipal Court of the City of Tulsa, Case No. 252237, for the offense of Loitering Where Gambling is Conducted, in violation of Tulsa, Okla.Rev.Ord., Title XXVII, ch. 8, § 203, and sentenced to pay a Twenty-Five Dollar ($25.00) fine and costs.

The pivotal issue before this Court is the constitutionality of the ordinance under which the appellant was convicted. This ordinance provides:

"It shall be an offense for any person to frequent or loiter in any place where gaming or gambling is taking place or where any other provisions of this Chapter are being violated. Any person convicted of a violation of this Section shall be punished by a fine (of) not more than Fifty Dollars ($50.00), including costs."

The appellant argues that this ordinance is an unconstitutional denial of due process of law because it is impermissibly vague.

There are essentially two independent reasons for the requirement of specificity in penal statutes. First, due process requires that citizens be afforded fair notice as to what conduct is forbidden. Secondly, explicit standards are necessary in order to prevent arbitrary arrests and convictions resting solely on the unfettered discretion of the police, judges and juries. Papachristou v. Jacksonville, 405 U.S. 156, 168, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

Statutes which create and provide penalties for criminal offenders should be sufficiently explicit so persons of common intelligence may understand their provisions and so that their meaning does not require speculation. See Hayes v. Municipal Court of Oklahoma City, Okl.Cr., 487 P.2d 974 (1971), and Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939). The appellant contends that the ordinance at issue is uncertain due to its use of ambiguous words, specifically "frequent or loiter" and "place."

The Oregon Court of Appeals in State v. Debnam, 23 Or.App. 433, 542 P.2d 939 (1975), invalidated an Oregon statute prohibiting loitering. That Court said at page 940:

" '(L)oitering' as a criterion of criminal conduct is an incomprehensible standard and

" ' * * * is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, "men of common intelligence must necessarily guess at its meaning. " Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).' Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971)."

A city ordinance prohibiting vagrancy was struck down by the United States Supreme Court in Papachristou v. Jacksonville, supra. The ordinance provided in part that " 'persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served,' " (405 U.S. at 156, n. 1, 92 S.Ct. at 840) should be subject to punishment. None of the petitioners in Papachristou had been convicted under the gaming house clause, but the Supreme Court rejected the entire ordinance on its face, not just as applied to the petitioners in the case: "The Jacksonville ordinance cannot be squared with our constitutional standards and is plainly unconstitutional."

And in Hayes v. Municipal Court of Oklahoma City, supra, we declared unconstitutional an Oklahoma City ordinance prohibiting loitering in certain specified places during specified hours. We find the ordinance to be both vague and overbroad, stating:

"The clear weight of modern authority holds that legislation which makes it a crime to loiter, wander, stroll, or idle is unconstitutionally vague as failing to give fair notice of what is and what is not prohibited by their terms. As meaning is obscure they lack sufficient definiteness to provide an ascertainable standard for the...