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300.13 Vagueness And Overbreadth

    300.13.1 Constitutional Claims: Vagueness    
    300.13.2 Constitutional Claims: Overbreadth
    300.13.3  Unconstitutional Vagueness: Narrowing Instruction Should Be Fashioned By Appellate Court

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PRACTICE NOTE: The vagueness doctrine under the Due Process Clause of the 5th and 14th Amendments to the U.S. Constitution requires that all persons be given fair notice of what conduct is against the law and may subject them to criminal liability. This doctrine provides that a statute is void if the conduct forbidden by it is so poorly defined that persons of "common intelligence must necessarily guess at its meaning and differ as to its application." (Connolly v. General Construction Co. (1926) 269 US 385, 391 [46 SCt 126; 70 LEd 322].) Not only do vague statutes fail to provide adequate notice but they also result in arbitrary enforcement of statutes. "'A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant danger of arbitrary and discriminatory application.' [Citation.]" (People v. Superior Court (Caswell) (CA 1988) 46 C3d 381, 390 [250 CR 515].) Additionally, a vague statute offends fundamental notion of fairness by failing to give adequate warning to persons of ordinary intelligence of what is prohibited, and by giving impermissible discretion to governmental authorities to enforce the law arbitrarily and subjectively. (Kolender v. Lawson (1983) 461 US 352, 358 [103 SCt 1855; 5 LEd2d 903].)

    In determining a vagueness challenge, a court will look to whether the terms of the statute, although undefined or uncertain in the statute, have established canons of construction that provide sufficient guidance as to their meaning. (See e.g. Connolly, 269 US at 394.) In particular, the courts look for well-established common law definitions of questionable terms or other state case law demonstrating that the judiciary has sufficiently interpreted the questionable language. In Tobe v. City of Santa Ana (CA 1994) 9 C4th 1069, 1084 [40 CR2d 402], the California Supreme Court explained the two different types of vagueness challenges: a challenge to a statute on its face (so vague that it's unconstitutional as to everyone, irrespective of facts), and a challenge to a statute as applied (vague to this particular defendant on these facts). (See also Grayned v. City of Rockford (1972) 408 US 104, 111 [92 SCt 2294; 33 LEd2d 222]; Lanzetta v. New Jersey (1939) 306 US 451, 454-55 [59 SCt 618; 83 LEd 888].)

    "If persons of ordinary intelligence must guess at a statute’s meaning or would reasonably differ about their understanding of prohibited conduct, the statute is unconstitutionally vague, and crimes charged thereunder may be dismissed, on a case-by-case basis." Cook and Hermann, Criminal Defense Checklist (West, 1998 ed.) § 6.02(3); see also Wharton’s Criminal Law (West, 15th ed. 1993) § 11 p. 39.)

    "That is, given the limitations of language and syntax, a statute must convey to those individuals within its purview what it purports to prohibit and how it will punish an infraction." (U.S. v. Corrow (10th Cir. 1997) 119 F3d 796, 802.)

    "Thus, the 5th Amendment due process clause requires a statute to be sufficiently clear so as not to cause persons of common intelligence...necessarily to guess at its meaning and to differ as to its application." (U.S. v. Makowski (9th Cir. 1997) 120 F3d 1078, 1080.)

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PRACTICE NOTE: A concept which is similar to vagueness but distinct is overbreadth. The doctrine of overbreadth states that the government may not pursue satisfaction of a proper governmental purpose by means that sweep unnecessarily broadly and thereby invade protected individual freedoms. (NAACP v. Alabama (1964) 377 US 288, 307 [84 SCt 1302; 12 LEd2d 325].) The danger of an overly broad statute is twofold: "that it may deter citizens from engaging in constitutionally privileged activity -- 'the chilling effect' -- [and], perhaps more ominously, that it gives enforcement officials the power to select certain citizens, from all of those exercising a particular right, and punish them." (Scott v. Parish (LA 1970) 309 FSupp 833 at 838.)

    "A statute which prohibits protected, as well as unprotected, speech or conduct will be struck down as overbroad only if the overreaching is substantial as well as real." (Cook and Hermann, Criminal Defense Checklist (West, 1998 ed.) § 7.01(5); Osborne v. Ohio (1990) 495 US 103, 112 [110 SCt 1691; 109 LEd2d 98].)

    One useful thing about this doctrine is that it allows anyone at all to attack an arguably overbroad statute dealing with First Amendment-protected activity, even people who clearly don't fall under its provisions. That is a form of standing which doesn't exist in most situations. (See e.g., People v. Fogelson (CA 1978) 21 C3d 158, 163-64 [145 CR 542].)

    In sum, even though vagueness and overbreadth are often discussed together, the distinction between them is significant. Vagueness deals with the due process concerns of fairness, specifically, whether a statute is clearly defined. (Grayned v. City of Rockford, 408 US at 107.) On the other hand, "[a] clear and precise enactment may nevertheless be 'overbroad' if in its reach it prohibits constitutionally protected conduct." (Id. at 114.)

    Under both the vagueness and the overbreadth theories, the judiciary applies a higher level of scrutiny to statutes affecting the exercise of First Amendment rights. (See Ashton v. Kentucky (1966) 384 US 195, 200 [86 SCt 1407; 16 LEd2d 469]; Broadrick v. Oklahoma (1973) 413 US 601, 612 [93 SCt 2908; 37 LEd2d 830] [analyzing challenge to state statute on grounds of overbreadth].)

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        300.13.3    Unconstitutional Vagueness: Narrowing Instruction Should Be Fashioned By Appellate Court

PRACTICE NOTE:  Following the Eighth Circuit's decision that the "exceptional depravity" aggravator previously found in Moore v. Kinney (8th Cir. 2002) 278 F3d 774, 782 was unconstitutionally vague, the case was remanded to the Nebraska Supreme Court which declined to fashion a narrowing instruction but instead remanded to the trial court.  The three-judge panel that resentenced Moore to death "did not have the authority to impose the death penalty against [defendant] on the basis of its reconsideration of the exceptional depravity aggravator.  "The state has failed to cite a case in which an unconstitutionally vague statute regarding the application of an aggravating circumstance has been cured on remand by a state trial court, which then resentences the defendant to death on the basis of the newly-defined statute...The concern for eliminating arbitrariness and capriciousness expressed in Gregg is not served by vesting the judicial narrowing function in the same tribunal that will be responsible for applying in the first instance the resulting construction."  (Moore v. Kinney, 278 F3d at 782, 783.)