Parker v. Municipal Judge of City of Las Vegas

427 P.2d 642, 83 Nev. 214, 1967 Nev. LEXIS 258

• Court: Nevada Supreme Court
• Decided: May 15, 1967
• Docket: 5213, 5261
• Status: Published

Opinions

OPINION

By the Court,

Thompson, C. J.:

These are consolidated proceedings in prohibition to test the constitutionality of the “disorderly persons” ordinance of the City of Las Vegas. Each petitioner was charged with being a “disorderly person” in that he had the physical ability to work, no visible means of support, and was in a public place.¹ Each was tried before the Municipal Court and found guilty. Neither has been sentenced because these proceedings intervened. The Municipal Court is not a court of record. Therefore, we must assume that the charges were proven true, i.e., that each petitioner, at the time specified, had the ability to work, was without visible means of support, and was found in a public place. Thus, our concern is whether that part of the ordinance under which they were charged is unconstitutional on its face. It is our judgment that it is unconstitutional since its effect is to make the status of poverty a crime thereby violating due process. City of Reno v. District Court, 83 Nev. 201, 427 P.2d 4 (1967) [where we held unconstitutional a municipal ordinance prohibiting persons of evil reputation from consorting for an unlawful purpose]; Robinson v. California, 370 U.S. 660 (1962) [holding unconstitutional a statute which imposed criminal penalties for the condition of being addicted to the use of narcotics]; Hicks v. District of Columbia, 383 U.S. 252 (1966) [where Justice Douglas, dissenting from the dismissal of certiorari as improvidently granted, expressed his view that the personal condition of being a vagrant cannot constitutionally be made a crime].

We approve, without qualification, the comment of Justice Jackson in his concurring opinion in Edwards v. California, 314 U.S. 160, 184, 185 (1941): “We should say now, and in no uncertain terms, that a man’s mere property status, without more, cannot be used by a State to test, qualify, or limit his rights as a citizen of the United States. ‘Indigence’ in itself is neither a source of rights or a basis for denying them. The mere state of being without funds is a neutral fact • — constitutionally an irrelevance, like race, creed, or color.” Writers upon the subject condemn this type of ordinance as inimical to our fundamental notions of freedom, and hostile to the idea that every person has value. Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603 (1956); Sherry, Vagrants, Rogues and Vagabonds — Old Concepts in Need of Revision, 48 Cal.L.Rev. 557 (1960); Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1 (1960); Comment, 37 N.Y.U.L.Rev. 102 (1962). We likewise condemn it.

Our reasons for voiding a law which makes status, rather than conduct, a crime are fully articulated in City of Reno v. District Court, supra, and need not again be expressed. We do, however, add one further comment. The ordinance before us, unlike that involved in the City of Reno v. District Court case, does not attempt to interject, by way of presumption, an “unlawful purpose,” to justify its validity. Of course, in our view, such addition would not save the ordinance from constitutional challenge. We note this distinction only to point out that this ordinance cannot meet constitutional standards under any analysis. It simply is not a crime to be unemployed, without funds, and in a public place. To punish the unfortunate for this circumstance debases society. The comment of Justice Douglas is relevant: “How can we hold our heads high and still confuse with crime the need for welfare or the need for work?” Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 12 (1960).

Finally, we reject the thought that over the years the use and application of this type of law will somehow “average out” to be a worthwhile tool in the administration of justice. “[A] ver ages in the administration of justice do not avail the person who is wronged grievously in his own, particular case. The appeal to time and patience may assist in evolving better concepts and techniques for future use of the profession, but it cannot excuse or exonerate our sending an innocent man to the penitentiary here and now. Enlightenment tomorrow or elsewhere will not serve, for his destiny rests in our hands today, and our sense of injustice . . . forbids us to be patient at his cost.” Cahn, The Consumers of Injustice, 34 N.Y.U.L. Rev. 1166, 1176 (1959). See also: City of Seattle v. Drew 423 P.2d 522 (Wash. 1967); Territory of Hawaii v. Anduha, 48 F.2d 171 (9 Cir. 1931); Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965).

The peremptory writ of prohibition heretofore issued in each case is made permanent.

Zenoff, J., concurs.

1 Title VI, Ch. 1, § 11, Las Vegas City Code. Disorderly Persons: Persons within the Limits of the City who have the physical ability to work, not having visible means of support, living idly, or who are found loitering or loafing about the streets, alleys or public places of the City, or who are found loafing or loitering habitually in or about the dramshops, tippling houses, saloons, barrooms, roadhouses, night clubs, gambling houses or places resorted to by persons for purposes of prostitution or immoral purposes, shall be deemed disorderly persons and shall be guilty of a misdemeanor.