City of Seattle v. Webster

802 P.2d 1333, 115 Wash. 2d 635, 7 A.L.R. 5th 1100, 1990 Wash. LEXIS 171

• Court: Washington Supreme Court
• Decided: December 6, 1990
• Docket: 56959-2
• Status: Published

Opinions

Smith, J.

The City of Seattle sought review of a King County Superior Court decision affirming the Seattle Municipal Court which dismissed charges against Respondent Arlander Duke Webster for violation of the Seattle Pedestrian Interference Ordinance, Seattle Municipal Code 12A.12.015(B)(1). Both courts concluded that the section of the ordinance under which respondent was charged was unconstitutionally vague and overbroad. We disagree and remand the case to the Seattle Municipal Court for trial.

The principal question we consider in this case is whether subsection (B)(1) of Seattle Municipal Code (SMC) 12A.12.015 (pedestrian interference ordinance) is unconstitutional on its face because it is vague and over-broad. We also consider whether the ordinance is unreasonable and whether it violates equal protection of the law. We answer those questions in the negative and uphold the constitutionality of the ordinance.

We reverse the Superior Court and the Municipal Court and reinstate the charge against Respondent Webster. The case should then proceed to trial in the ordinary course. Essential facts will then become of record. Respondent Webster will not be precluded from again raising the issue of constitutionality of the ordinance at a proper stage of the proceedings.¹

Respondent Arlander Duke Webster was charged with violating SMC 12A.12.015(B)(1), a portion of the Seattle "pedestrian interference ordinance," on April 10, 1988. The ordinance makes it unlawful to intentionally obstruct pedestrian or vehicular traffic.

When the case was called, Respondent Webster moved for dismissal, challenging the ordinance as unconstitutionally vague, overbroad, and unreasonable and as a violation of his equal protection rights.

On May 27, 1988, the Honorable Barbara A. Madsen, Seattle Municipal Court, granted respondent's motion for dismissal, stating:

[A] person could be charged with this, under this ordinance, and be doing something that no one in the world would think was unlawful conduct, including on a very nice hot sunny day being age sixteen sitting on a sidewalk watching cars go by, which of course I think that all of us have done; being a Santa Claus at Christmas time and standing ringing a bell at a front door of a department store; walking from the side of the store out to the street to see if your bus has come yet and making people walk around you. I just could imagine many, many, many, many circumstances under which it would be based on the discretion of police authority as to whether you should be charged or not based on conduct, that if you were an attractive looking person who probably was a person of some means [you] wouldn't be arrested, and if you were a scrubby looking individual looking like you didn't have the where with all [sic] for the next cup of coffee, you would be charged, or [sic] I find that unconstitutional and I would grant the defendant's motion to dismiss based on the lack of constitutionality of the ordinance.

The City of Seattle appealed the dismissal to the Superior Court.

On November 17, 1988, the Honorable R. Joseph Wesley, King County Superior Court, affirmed the dismissal, concluding that ”[t]he ordinance, SMC 12A.12.015(B)(1), is unconstitutionally vague and overbroad."

On December 7, 1988, the City of Seattle filed a notice for discretionary review. By order dated March 6, 1990, the Court of Appeals, Division One, certified the case to this court. This court accepted certification on March 9, 1990.

Because the case was dismissed before trial upon a facial challenge to the constitutionality of the ordinance, there is no factual record. The police report on the underlying charge, which is the only source of information relating to the charge, is reproduced in its entirety:

[[Image here]]

The Seattle "pedestrian interference ordinance," SMC 12A.12.015, adopted in October 1987, provides in relevant part:

A. The following definitions apply in this section:

1. "Aggressively beg" means to beg with intent to intimidate another person into giving money or goods.

3. "Obstruct pedestrian or vehicular traffic" means to walk, stand, sit, lie, or place an object in such a manner as to block passage by another person or a vehicle, or to require another person or a driver of a vehicle to take evasive action to avoid physical contact. Acts authorized as an exercise of one's constitutional right to picket or to legally protest. . . shall not constitute obstruction of pedestrian or vehicular traffic.

B. A person is guilty of pedestrian interference if . . . [that person] intentionally:

1. Obstructs pedestrian or vehicular traffic; or

2. Aggressively begs.

C. Pedestrian interference may be punished by a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment in jail for a term not to exceed ninety (90) days or by both such fine and imprisonment.

Facts are not essential for consideration of a facial challenge to a statute or ordinance on First Amendment grounds.² Constitutional analysis is made upon the language of the ordinance or statute itself.³

We first consider whether SMC 12A.12.015(B)(1) is unconstitutionally overbroad.

This court summarized the overbreadth doctrine in Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989) as follows:

A law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities. The First Amendment overbreadth doctrine may invalidate a law on its face only if the law is "substantially overbroad." In determining overbreadth, "a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Criminal statutes require particular scrutiny and may be facially invalid if they "make unlawful a substantial amount of constitutionally protected conduct. . . even if they also have legitimate application."[⁴]

A statute which regulates behavior, and not pure speech, "will not be overturned unless the over breadth is 'both real and substantial in relation to the ordinance's plainly legitimate sweep.'" ⁵ However, despite the obligation to construe the language of an ordinance to uphold its constitutionality, this court will not do so if it is "unable to place a sufficiently limited construction upon the standardless sweep of [the] legislation."⁶

Respondent argues that ”[t]he Seattle ordinance has a potentially enormous scope, since it is not uncommon to innocently walk, stand, sit, lie, or place an object in such a manner as to block passage of another." However, the ordinance is written to apply only to persons intentionally "blocking] passage by another person or a vehicle" and "requiring] another person or a driver of a vehicle to take evasive action to avoid physical contact" by "walk[ing], standing], sit[ting], l[ying] or placing] an object". SMC 12A.12.015(A)(3).

The ordinance does not prohibit innocent intentional acts which merely consequentially block traffic or cause others to take evasive action. Many of those "consequential" results may arise from protected activities such as collecting signatures on a petition. In addition, "mere sauntering or loitering on a public way is lawful and the right of any man, woman, or child."⁷ Under SMC 12A.12-.015(B)(1), it is not unlawful to exercise that right even though it may cause another person or driver to "take evasive action".

The City of Seattle argues that inclusion in the ordinance of the element of specific intent saves it from being unconstitutionally overbroad. We agree. In Seattle v. Slack,8 we held that the element of specific intent saved another Seattle Municipal Ordinance from unconstitutional over-breadth.

In Slack, this court considered the constitutionality of SMC 12A.10.010, Seattle's "prostitution loitering ordinance." The court was unanimous in upholding the ordinance which clearly required specific intent for specified acts.

In this case, the language of SMC 12A.12.015(B)(1) clearly indicates that, before there can be a charge or conviction under the ordinance, a person must act with intent to block another's passage or with intent to cause a person or vehicle to take evasive action. The element of intent in the ordinance sufficiently narrows its scope to save SMC 12A.12.015(B)(1) against a claim of unconstitutional over-breadth.

We next consider whether SMC 12A.12.015(B)(1) is unconstitutionally vague.

The due process doctrine of "void for vagueness" has two central principles. First, criminality must be defined with sufficient specificity to put citizens on notice concerning conduct they must avoid. And second, legislated crimes must not be susceptible of arbitrary and discriminatory law enforcement.⁹

A statute is unconstitutionally vague if "persons of common intelligence must necessarily guess at its meaning and differ as to its application."¹⁰

In Seattle v. Huff,11 this court summarized the "void for vagueness" doctrine:

Under this analysis, the factual setting of this case is irrelevant and we look only to whether . . any conviction under the statute could be constitutionally upheld."' An ordinance is presumed constitutional and the party challenging the constitutionality of the law has the burden of proving it is unconstitutionally vague beyond a reasonable doubt. This presumption "should be overcome only in exceptional cases."

When a legislative enactment is challenged on vagueness grounds, the issue is whether the two requirements of procedural due process are met: adequate notice to citizens and adequate standards to prevent arbitrary enforcement. Strict specificity is not required; the exact point where actions cross the line into prohibited conduct need not be predicted. '"[I]f [persons] of ordinary intelligence can understand a penal statute notwithstanding some possible areas of disagreement, it is not wanting in certainty.'" A statute is not unconstitutional "if the general area of conduct against which it is directed is made plain." The language of a challenged statute will not be looked at in a vacuum, rather, the context of the entire statute is considered.[¹²]

The limitations on the vagueness doctrine reflect this court's deference to the constitutional legislative role, as well as its recognition of the difficulties associated with legislating in areas such as disorderly conduct, where the terms are difficult to define.¹³

Petitioner City of Seattle contends that the ordinance is not unconstitutionally vague inasmuch as it includes an element of specific intent.¹⁴ The requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid.¹⁵

SMC 12A.12.015(B)(1) includes an element of specific intent. The ordinance does not, as respondent and amicus claim, base criminality on the reaction of others to the presence of a person on the public sidewalks. Rather, it defines the proscribed conduct solely in reference to the person interfering with the flow of pedestrian or vehicular traffic. The question can be asked: Did that person stand, sit, walk, or place an object with the intent to cause another person or a driver of a vehicle to take evasive action?¹⁶ If the answer is "yes," then the person may be properly charged under the ordinance.

SMC 12A.12.015(B)(1) provides adequate notice to persons of common understanding concerning the behavior prohibited and the specific intent required. It provides citizens, police officers and courts alike with sufficient guidelines to prevent arbitrary enforcement. It is not unconstitutionally vague.

The trial and review courts in this case declared SMC 12A.12.015(B)(1) unconstitutionally vague and overbroad. They did not rule on the reasonableness of the ordinance nor on whether it violates the equal protection rights of the homeless. Respondent raised those issues in the lower courts and renewed the arguments before this court.

An ordinance which makes no distinction between conduct calculated to harm and conduct which is essentially innocent is an unreasonable exercise of the government's police power.¹⁷ This court has summarized the doctrine of "void for unreasonableness" as follows:

An ordinance to be void for unreasonableness must be clearly and plainly unreasonable. The burden of establishing the invalidity of an ordinance rests heavily upon the party challenging its constitutionality. Every presumption will be in favor of constitutionality. And, if a state of facts justifying the ordinance can reasonably he conceived to exist, such facts must be presumed to exist and the ordinance passed in conformity therewith. These rules are more than mere rules of judicial convenience. They mark the line of demarcation between legislative and judicial functions.[¹⁸]

We have already concluded that SMC 12A.12-.015(B)(1) is not overbroad since it includes an element of specific intent. The ordinance distinguishes between conduct calculated to harm—intentionally interfering with pedestrian or vehicular traffic—and conduct which is essentially innocent—unintentionally interfering with traffic by merely being present upon a public sidewalk. Respondent has not overcome his heavy burden of proving that SMC 12A.12.015(B)(1) is "clearly and plainly unreasonable." We reject his reasonableness challenge to the ordinance.

Finally, we consider whether SMC 12A.12.015(B)(1) violates the equal protection rights of the homeless under the fourteenth amendment to the United States Constitution¹⁹ as argued by amicus.

Citing Massachusetts Bd. of Retirement v. Murgia,²⁰ amicus argues that the homeless should be recognized as a protected class because, among other reasons, they are "relegated to such a position of political powerlessness as to command extraordinary protection." Amicus argues, for example, that because RCW 29.07.070(4) provides that "[a]n address or post office box is required for a citizen to register to vote in Washington,"²¹ the indigent homeless are thus excluded from the political process.

Respondent and amicus further argue that any pedestrian interference or begging ordinance necessarily disparately affects the homeless as a class, thus violating the equal protection rights of homeless persons. They cite no authority for this.

This court has rejected an equal protection challenge to a Seattle ordinance because "[t]he ordinance applies equally to all persons who possess the requisite criminal intent."²² Similarly, in this case, the Seattle pedestrian interference ordinance applies equally to all persons. Nothing in the ordinance refers to economic circumstances or residential status.

Homelessness is a real national concern, particularly in metropolitan areas such as Seattle. We share compassion for those among us who suffer privation in the midst of plenty. However, the Seattle pedestrian interference ordinance with which we are here concerned is facially neutral. On the limited record before us there is no indication that Mr. Webster is indigent or homeless. His address in the police report merely indicates "transient." We cannot conclude from the limited information presented that homelessness is relevant to this case.

We have found no cases where the homeless have been judicially declared a protected class for purposes of Fourteenth Amendment analysis. While we recognize society's valid concern for the plight of the homeless, there is nothing in this record to support such a declaration in this case.

SMC 12A.12.015(B)(1) withstands a facial challenge to its constitutionality. We reverse the King County Superior Court and the Seattle Municipal Court and remand the case for trial.

Callow, C.J., and Brachtenbach, Dolliver, Dore, Andersen, Durham, and Guy, JJ., concur.

1 See, e.g., State v. Worrell, 111 Wn.2d 537, 761 P.2d 56 (1988).

2 Cf. Maynard v. Cartwright, 486 U.S. 356, 361, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988) (vagueness challenges to enactments not involving First Amendment rights are to be evaluated in light of particular facts of each case); State v. Worrell, 111 Wn.2d 537, 761 P.2d 56 (1988) (when a challenge is made to the constitutionality of an ordinance or statute not alleged to affect First Amendment freedoms, facts are required for evaluation "as applied" to a particular defendant's circumstances).

3 See Seattle v. Huff, 111 Wn.2d 923, 928, 767 P.2d 572 (1989).

4 (Citations omitted.) Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989) (upholding Seattle's telephone harassment ordinance, SMC 12A.06.100(a)(3)).

5 Seattle v. Eze, 111 Wn.2d 22, 31, 759 P.2d 366 (1988) (disorderly conduct on a bus) (quoting O'Day v. King Cy., 109 Wn.2d 796, 804, 749 P.2d 142 (1988)); see Broadrick v. Oklahoma, 413 U.S. 601, 615, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973).

6 Bellevue v. Miller, 85 Wn.2d 539, 547, 536 P.2d 603 (1975).

7 Seattle v. Pullman, 82 Wn.2d 794, 800, 514 P.2d 1059 (1973) (quoting Commonwealth v. Carpenter, 325 Mass. 519, 521, 91 N.E.2d 666 (1950)).

8 113 Wn.2d 850, 784 P.2d 494 (1989).

9 State v. Smith, 111 Wn.2d 1, 4-5, 759 P.2d 372 (1988) (upholding ROW 9A.46.010, the "harassment" statute).

10 State v. Smith, 111 Wn.2d 1, 7, 759 P.2d 372 (1988) (quoting State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982)); Connally v. General Constr. Co., 269 U.S. 385, 391, 709 L. Ed. 322, 46 S. Ct. 126 (1926).

11 111 Wn.2d 923, 767 P.2d 572 (1989) (upholding Seattle's telephone harassment ordinance, SMC 12A.06.100(a)(3)).

12 (Citations omitted.) Seattle v. Huff, 111 Wn.2d 923, 928-29, 767 P.2d 572 (1989).

13 Seattle v. Eze, 111 Wn.2d 22, 27, 759 P.2d 366 (1988) (upholding SMC 12A.12.040(F), disorderly conduct on a bus).

14 SMC 12A.04.030 defines intent as follows:

"A person intends or acts intentionally or with intent to accomplish a result or to engage in conduct described by the section defining the offense, [sic] when [that person's] conscious objective or purpose is to accomplish such a result or to engage in conduct of that nature."

15 Seattle v. Eze, 111 Wn.2d 22, 30 n.2, 759 P.2d 366 (1988) (citing Screws v. United States, 325 U.S. 91, 101-02, 89 L. Ed. 1495, 65 S. Ct. 1031, 162 A.L.R. 1330 (1945)). See also Seattle v. Slack, 113 Wn.2d 850, 857, 784 P.2d 494 (1989).

16 Compare Seattle v. Huff, 111 Wn.2d 923, 930, 767 P.2d 572 (1989).

17 See Seattle v. Pullman, 82 Wn.2d 794, 800, 514 P.2d 1059 (1973).

18 (Citations omitted.) Lend v. Seattle, 63 Wn.2d 664, 667-68, 388 P.2d 926 (1964).

19 Neither amicus nor respondent has performed the analysis we require under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986) before this court will engage in separate state constitutional analysis of an issue. Consequently, we consider the equal protection question only within the federal constitutional context.

20 427 U.S. 307, 313, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976).

21 RCW 29.07.070(4) provides that when applying for voter registration, an applicant is required to state, among other things, the applicant's "[p]lace of residence, street and number, if any, or post office or rural mail route address". Amicus does not address the question whether "general delivery" could not satisfy the "post office . . . address" requirement sufficiently to permit a homeless person to register to vote.

22 Seattle v. Slack, 113 Wn.2d 850, 858, 784 P.2d 494 (1989) (upholding SMC 12A.10.010, the "prostitution loitering" ordinance).