9 - SAGE edge

STUDYSITE
CHAPTER TWO WAS THE NEBRASKA STATUTE VOID FOR VAGUENESS? STATE V. METZGER
319 N.W.2d 459 (Neb. 1982)
OPINION BY: Krivosha, CJ. Issue Douglas E. Metzger, was convicted in the municipal court of the city of
Lincoln, Nebraska, of violating the Lincoln Municipal Code. The judgment
was affirmed by the District Court for Lancaster County, Nebraska, and
Metzger has appealed to this court. Metzger has raised several alleged
errors. There is, however, a threshold question which we must address and
which is dispositive of the entire matter. Was the Nebraska statute void
for vagueness? Facts According to the evidence, Metzger lived in a garden-level apartment
located in Lincoln, Nebraska. A large window in the apartment faces a
parking lot which is situated on the north side of the apartment building.
At about 7:45 a.m. on April 30, 1981, another resident of the apartment,
while parking his automobile in a space directly in front of Metzger's
apartment window, observed Metzger standing naked with his arms at his
sides in his apartment window for a period of 5 seconds. The resident
testified that he saw Metzger's body from his thighs on up.
The resident called the police department and two officers arrived at the
apartment at about 8 a.m. The officers testified that they observed
Metzger standing in front of the window eating a bowl of cereal. They
testified that Metzger was standing within a foot of the window and his
nude body, from the mid-thigh on up, was visible.
The pertinent portion of section 9.52.100 of the Lincoln Municipal
Code, under which Metzger was charged, provides as follows: "It shall be
unlawful for any person within the City of Lincoln . . . to commit any
indecent, immodest or filthy act in the presence of any person, or in such
a situation that persons passing might ordinarily see the same."
Reasoning The ...basic issue presented to us by this appeal is whether the ordinance,
as drafted, is so vague as to be unconstitutional. We believe that it is.
There is no argument that a violation of the municipal ordinance in
question is a criminal act. Since the ordinance in question is criminal in
nature, it is a fundamental requirement of due process of law that such
criminal ordinance be reasonably clear and definite..... Moreover, a crime
must be defined with sufficient definiteness and there must be
ascertainable standards of guilt to inform those subject thereto as to what
conduct will render them liable to punishment thereunder. The dividing line
between what is lawful and unlawful cannot be left to conjecture. A citizen
cannot be held to answer charges based upon penal statutes whose mandates
are so uncertain that they will reasonably admit of different
constructions. A criminal statute cannot rest upon an uncertain foundation.
The crime and the elements constituting it must be so clearly expressed
that the ordinary person can intelligently choose in advance what course it
is lawful for him to pursue. Penal statutes prohibiting the doing of
certain things and providing a punishment for their violation should not
admit of such a double meaning that the citizen may act upon one conception
of its requirements and the courts upon another. statute which forbids the
doing of an act in terms so vague that men of common intelligence must
necessarily guess as to its meaning and differ as to its application
violates the first essential elements of due process of law. It is not
permissible to enact a law which in effect spreads an all-inclusive net for
the feet of everybody upon the chance that, while the innocent will surely
be entangled in its meshes, some wrongdoers may also be caught.
The test to determine whether a statute defining an offense is void
for uncertainty (1) is whether the language may apply not only to a
particular act about which there can be little or no difference of opinion,
but equally to other acts about which there may be radical differences,
thereby devolving on the court the exercise of arbitrary power of
discriminating between the several classes of acts. (2) The dividing line
between what is lawful and what is unlawful cannot be left to conjecture.'"
In the case of Papachristou v. City of Jacksonville, 405 U.S. 156, 162,
(1972), the U.S. Supreme Court said: "Living under a rule of law entails
various suppositions, one of which is that '[all persons] are entitled to
be informed as to what the State commands or forbids.'" In Papachristou,
the U.S. Supreme Court declared a vagrancy statute of the city of
Jacksonville, Florida, invalid for vagueness, saying at 165: "This aspect
of the vagrancy ordinance before us is suggested by what this Court said in
1876 about a broad criminal statute enacted by Congress: 'It would
certainly be dangerous if the legislature could set a net large enough to
catch all possible offenders, and leave it to the courts to step inside and
say who could be rightfully detained, and who should be set at large.'"
The ordinance in question makes it unlawful for anyone to commit any
"indecent, immodest or filthy act." We know of no way in which the
standards required of a criminal act can be met in those broad, general
terms. There may be those few who believe persons of opposite sex holding
hands in public are immodest, and certainly more who might believe that
kissing in public is immodest. Such acts cannot constitute a crime.
Certainly one could find many who would conclude that today's swimming
attire found on many beaches or beside many pools is immodest. Yet, the
fact that it is immodest does not thereby make it illegal, absent some
requirement related to the health, safety, or welfare of the community. The
dividing line between what is lawful and what is unlawful in terms of
"indecent," "immodest," or "filthy" is simply too broad to satisfy the
constitutional requirements of due process. Both lawful and unlawful acts
can be embraced within such broad definitions. That cannot be permitted.
One is not able to determine in advance what is lawful and what is
unlawful.
We do not attempt, in this opinion, to determine whether Metzger's
actions in a particular case might not be made unlawful, nor do we intend
to encourage such behavior. Indeed, it may be possible that a governmental
subdivision using sufficiently definite language could make such an act as
committed by Metzger unlawful. We simply do not decide that question at
this time because of our determination that the ordinance in question is so
vague as to be unconstitutional.
We therefore believe that § 9.52.100 of the Lincoln Municipal Code
must be declared invalid. Because the ordinance is therefore declared
invalid, the conviction cannot stand.
Boslaugh, J., dissenting. The ordinance in question prohibits indecent acts, immodest acts, or filthy
acts in the presence of any person. Although the ordinance may be too broad
in some respects ....The exhibition of his genitals under the circumstances
of this case was, clearly, an indecent act. I do not subscribe to the view
that it is only "possible" that such conduct may be prohibited by statute
or ordinance. See Neb. Clinton and Hastings, JJ., join in this dissent. Questions for Discussion
1. What is the legal test employed by the Nebraska Supreme Court to
determine whether a statute is void-for-vagueness? Do you agree that the
municipal ordinance is unconstitutional?
2. Why do the dissenting judges disagree with the majority decision.
3. As a judge, how would you decide this case? CHAPTER TWO
Was the defendant's prison sentence based on a statutory provision that
discriminated against men? Wright v. South Carolina 563 S.E.2d 311 (S.C. 2000) opinion by Waller, J. Todd William Wright was convicted of criminal domestic violence of a high
and aggravated nature (CDVHAN) and sentenced to ten years imprisonment,
suspended upon service of eight years, and five years probation. We affirm. Facts
Wright, six feet tall and weighing 216 pounds, beat and kicked his wife
Wendy on the evening of February 16, 1999. Her injuries were so severe that
two of her ribs were fractured and her spleen had to be removed. Wright was
indicted for criminal domestic violence of a high and aggravated nature.
The aggravating factors alleged in the indictment were "a difference in the
sexes of the victim and the defendant" and/or that "the defendant did
inflict serious bodily harm upon the victim by kicking her in the mid-
section requiring her to seek medical attention."
The offense of CDVHAN incorporates the aggravating factor of an assault and
battery of a high and aggravated nature (ABHAN). The elements of ABHAN that
result in a defendant receiving a harsher sentence are (1) the unlawful act
of violent injury to another, accompanied by circumstances of aggravation.
Circumstances of aggravation include the use of a deadly weapon, the intent
to commit a felony, infliction of serious bodily injury, great disparity in
the ages or physical conditions of the parties, a difference in gender, the
purposeful infliction of shame and disgrace, taking indecent liberties or
familiarities with a female, and resistance to lawful authority. . . .
Wright objected to the judge's charge on the aggravating circumstance of "a
difference of the sexes," contending it violated equal protection. The
objection was overruled; Wright was found guilty as charged. Issue
Does the aggravating circumstance of a "difference in the sexes" violate
equal protection in violation of the Fourteenth Amendment Section 1 ("No
State shall . . . deny to any person within its jurisdiction the equal
protection of the laws")? Reasoning
Wright contends the judge's charge on the aggravating circumstance of a
"difference in the sexes" violated his right