CHAPTER 16

VAGUENESS AND OVERBREADTH

§ 16.01 Vagueness Challenges

§ 16.02 Overbreadth Challenges

§ 16.01

Vagueness Challenges

The states have virtual carte blanche in legislating crimes and defenses, but there are a few limits. The most commonly asserted constitutional challenges to penal statutes involve claims of vagueness and overbreadth, although these are by no means the only possible bases for attack (for example, a penal statute cannot discriminate against certain classes of defendants,{1} or criminalize constitutionally protected conduct or speech,{2} or impose grossly disproportionate penalties).{3}

A statute is unconstitutionally vague if it fails to give people of ordinary intelligence fair notice of what conduct is forbidden;{4} or if it fails to establish guidelines for the police and decisional guidelines for judges, so that "arbitrary and discriminatory enforcement is not encouraged."{5} A line of United States Supreme Court decisions has enforced the "void-for-vagueness" rule against open-ended vagrancy and other statutes.{6} The doctrine applies not only to criminal statutes, but to the proscriptions contained in conditions of probation,{7} and probably also prison disciplinary rules.{8}

Vagueness challenges that do not involve first amendment "overbreadth" issues{9} must be focused on the facts of the particular case,{10} that is, the statute "as applied" rather than on "on its face." The defendant "whose particular conduct is adequately described" by a statute cannot complain that "the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit."{11}

A narrowing judicial construction can make a vaguely written statute sufficiently definite to pass constitutional muster. For example, if the proscribed acts are only vaguely defined, a constructive scienter element can satisfy the notice requirement.{12} In State v. Harris{13} the Vermont Supreme Court held that a statute that made it a felony to "hinder" a law enforcement officer{14} could be invoked to punish only those hindering actions that were otherwise illegal; a broader reading would have made it unconstitutionally vague.{15}

The Vermont Supreme Court has rejected as-applied vagueness challenges to 13 V.S.A. § 2602, prohibiting "lewd and lascivious" conduct with a minor;{16} 13 V.S.A. § 2601 proscribing "open and gross lewdness and lascivious behavior";{17} 13 V.S.A. § 1026(1), the disorderly conduct statute, prohibiting certain acts "with intent to cause public inconvenience or recklessly creating a risk thereof";{18} 16 V.S.A. 1127(b), penalizing failure to attend school "without legal excuse";{19} 23 V.S.A. § 1201(a) prohibiting "actual physical control" of a motor vehicle while under the influence of alcohol;{20} 23 V.S.A. § 1091(b) punishing driving in "willful or wanton disregard for the safety of persons or property";{21} and 33 V.S.A. § 2581(a), which makes it a crime to file "false" Medicaid reimbursement claims.{22}

§ 16.02

Overbreadth Challenges

Statutes that, on their face, purport to criminalize "a substantial amount of constitutionally protected conduct" may be facially challenged.{23} Whether a statute is "substantially" overbroad must be assessed "in relation to [its] plainly legitimate sweep."{24} In State v. Cantrell the Vermont Supreme Court held that a statute criminalizing the unlicensed practice of medicine, defined to include anyone who "recommend[s]" or "advise[s]" a course of treatment, was not substantially overbroad because the statutory scheme was primarily aimed at unprotected conduct, even though it also reached some protected speech.{25} Similarly, a statute punishing only behavior cannot be facially challenged on the ground that the prohibition conflicts with the defendant's religion.{26}

1. See, e.g., State v. George, No. 88-491 (Vt. Dec. 13, 1991) (rejecting a gender-based equal protection challenge to a statute criminalizing solicitation of females for prostitution); State v. Carpenter, 138 Vt. 140, 142-44 (1980) (rejecting an equal protection challenge to 21 V.S.A. § 345, penalizing nonpayment of wages).

2. See, e.g., R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992) (striking down a "hate crimes" ordinance as violative of the first amendment); State v. Ladue, No. 91-313 (Vt. July 1, 1993) (upholding Vermont's "hate crimes" law against a first amendment challenge); State v. DeLaBruere, 154 Vt. 237 (1990) (upholding the school-attendance law against a free exercise of religion challenge).

3. See § 37.01, infra.

4. State v. DeLaBruere, 154 Vt. 237, 271 (1990); State v. Cantrell, 151 Vt. 130, 133 (1989); State v. Roy, 140 Vt. 219, 229 (1981).

5. State v. DeLaBruere, 154 Vt. 237, 271 (1990); State v. Cantrell, 151 Vt. 130, 133 (1989). A statute without clear standards "allows policemen, prosecutors, and juries to pursue their personal predilections." Cantrell, 151 Vt. at 139 (Allen, C.J., dissenting) (quoting Smith v. Goguen, 415 U.S. 566, 575 (1974)). A related state law doctrine prohibits "unrestrained and arbitrary" delegation of authority to executive officials. State v. Chambers, 144 Vt. 234, 238-40 (1984). Cf. State v. Moses, No. 91-117, slip op. 6-9 (Vt. Oct. 23, 1992) (probation condition delegated too much to probation officer).

6. See Kolender v. Lawson, 461 U.S. 352, 361 (1983); Hoffman Estates v. Flipside, 455 U.S. 489, 498 (1982); Colautti v. Franklin, 439 U.S. 379, 391 (1979); Smith v. Goguen, 415 U.S. 566, 574 (1974); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Lanzetta v. New Jersey, 306 U.S. 451 (1939).

7. "[D]ue process requires that a convicted offender be given fair notice as to what acts may constitute a violation of his probation, thereby subjecting him to loss of liberty." State v. Emery, 156 Vt. 364, 372 (1991); State v. Peck, 149 Vt. 617, 619 (1989).

8. Shuttle v. Patrissi, No. 90-316, slip op. 7 (Vt. Feb. 14, 1992).

9. See § 16.02, infra.

10. State v. Cantrell, 151 Vt. 130, 133 (1989); State v. Begins, 147 Vt. 45, 48 (1986); State v. Purvis, 146 Vt. 441, 443 (1985); State v. Roy, 140 Vt. 219, 229 (1981).

11. State v. Cantrell, 151 Vt. 130, 133 (1989) (quoting Parker v. Levy, 417 U.S. 733, 756 (1974)). See also State v. Purvis, 146 Vt. 411, 443 (1985).

12. See State v. Purvis, 146 Vt. 441, 443 (1985) (defendant charged with open and gross lewdness was not prosecuted for "mere nudity" but for intentionally drawing attention to himself). Cf. State v. Roy, 140 Vt. 219, 230 (1981) (statutory specific intent element of lewd and lascivious conduct statute, 13 V.S.A. § 2602, "alleviates any problem with vagueness").

13. 152 Vt. 507 (1989).

14. 13 V.S.A. § 3001.

15. State v. Harris, 152 Vt. 507, 509 (1989). See also State v. DeLaBruere, 154 Vt. 237, 270-72 (1990) (narrowly construing a truancy statute).

16. In re P.M., 156 Vt. 303, 308 (1991); State v. Roy, 140 Vt. 219, 229-30 (1981).

17. State v. Purvis, 146 Vt. 441 (1985).

18. State v. Begins, 147 Vt. 45, 47-48 (1986)

19. State v. DeLaBruere, 154 Vt. 237, 270-72 (1990).

20. State v. Trucott, 145 Vt. 274, 278-81 (1985).

21. State v. Parenteau, 153 Vt. 123, 125-27 (1989).

22. State v. Dorn, 145 Vt. 606, 613 (1985).

23. State v. Cantrell, 151 Vt. 130, 133-34 (1989) (quoting Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983); City of Houston v. Hill, 482 U.S. 451, 459 (1987)). Courts narrowly construe statutes restricting speech with an eye to overbreadth problems. See State v. Wilcox, No. 92-355, slip op. 3-4 (Vt. May 21, 1993) (construing "telephone harassment" statute).

24. State v. Cantrell, 151 Vt. 130, 134 (1989) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).

25. State v. Cantrell, 151 Vt. 130, 134-35 (1989). But see Chief Justice Allen's dissent, 151 Vt. at 139, quoting Houston v. Hill, 482 U.S. 451, 467 (1987) (statute is facially overbroad because it is "susceptible of regular application to protected expression").

26. State v. DeLaBruere, 154 Vt. 237, 271 n.16 (1990).