PEOPLE BY AND THROUGH LONGMONT v. Gomez

843 P.2d 1321
CourtSupreme Court of Colorado
DecidedJanuary 11, 1993
Docket91SC726
StatusPublished
Cited by1 cases

This text of 843 P.2d 1321 (PEOPLE BY AND THROUGH LONGMONT v. Gomez) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PEOPLE BY AND THROUGH LONGMONT v. Gomez, 843 P.2d 1321 (Colo. 1993).

Opinion

843 P.2d 1321 (1993)

The PEOPLE of the State of Colorado By and Through the CITY OF LONGMONT, Petitioner,
v.
Thomas GOMEZ, Respondent.

No. 91SC726.

Supreme Court of Colorado, En Banc.

January 11, 1993.

Claybourne M. Douglas, City Atty., City of Longmont, Longmont, for petitioner.

*1322 Lusero & Wimmershoff, James F. Lusero, Longmont, for respondent.

Charles H. Richardson, George W. Zierk, III, Aurora, for amicus curiae City of Aurora.

Justice KIRSHBAUM delivered the Opinion of the Court.

We granted certiorari, pursuant to C.A.R. 49(a), to review an order of the Boulder County District Court affirming a municipal court ruling declaring a City of Longmont, Colorado (Longmont), ordinance prohibiting harassment to be unconstitutionally vague. We affirm.

I

In late 1990, the respondent, Thomas Gomez, mailed a ten-page letter to his former wife replete with profanity and negative assessments of her character and conduct. On December 5, 1990, a Longmont police officer filed a summons and complaint in the Longmont Municipal Court charging Gomez with a violation of the Longmont harassment ordinance. Longmont, Co., Mun.Code § 10.12.170 (1988).[1] Gomez subsequently moved to dismiss the case on the ground that subsection (A)(5) of the ordinance with which he was charged was unconstitutional.[2] On May 24, 1991, after conducting a hearing, the municipal court held that the ordinance was unconstitutionally vague[3] and dismissed the case.

The prosecution appealed the municipal court's judgment to the district court.[4] The district court affirmed, concluding that the ordinance failed to provide particularized standards for determining what conduct constitutes harassment.

II

Several basic principles of constitutional analysis are pertinent to our inquiry. Statutes are presumed to be constitutional, People v. Schoondermark, 699 P.2d 411, 415 (Colo.1985), and a party attacking a statute on constitutional grounds assumes the burden of proving the unconstitutionality of the statute beyond a reasonable doubt. People v. Rosburg, 805 P.2d 432, 439 (Colo.1991); People v. Revello, 735 P.2d 487, 489 (Colo.1987). In addressing a challenge to a statute as unconstitutionally vague in violation of the due process clause of the Colorado Constitution,[5] we must determine whether the statute "`either forbids or requires the doing of an act in terms so vague that [persons] of ordinary intelligence must necessarily guess as to its meaning and differ as to its application....'" People ex rel. City of Arvada v. Nissen, 650 P.2d 547, 550 (Colo. 1982) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)); see also People v. Becker, 759 P.2d 26, 31 (Colo.1988). Mathematical precision in legislative drafting is not required. People v. Ford, 773 P.2d 1059, 1067 (Colo.1989). Although statutory language must be sufficiently specific to give fair warning of prohibited conduct, it also must be sufficiently general to permit application of the prescribed standards of conduct to varied circumstances and changing *1323 times. Exotic Coins, Inc. v. Beacom, 699 P.2d 930, 943 (Colo.), appeal dismissed for want of substantial federal question, 474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 214 (1985).

The Longmont ordinance here challenged contains the following provisions:

Harassment. A. A person commits harassment if, with intent to harass, threaten or abuse another person he:
1. Strikes, shoves, kicks or otherwise touches a person, or subjects him to physical contact; or
2. In a public place, directs obscene language or makes an obscene gesture to or at another person in such manner as is likely to create an immediate breach of the peace; or
3. Follows a person in or about a public place; or
4. Repeatedly insults, taunts or challenges another in a manner likely to provoke an immediate violent or disorderly response;
5. Engages in any other conduct that in fact harasses, threatens or abuses another person.
B. As used in this section, unless the context otherwise requires, "obscene" means a patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions.
C. Penalty. Any person violating the provisions of this section shall, upon conviction, be punished by a fine not exceeding nine hundred ninety-nine dollars or by imprisonment not exceeding one hundred eighty days, or by both such fine and imprisonment.

Longmont, Co., Mun.Code § 10.12.170 (1988). The People assert that when read together with other provisions of the ordinance, subsection (A)(5) thereof does not contravene due process vagueness standards. We disagree.

The ordinance prohibits conduct intended to harass, threaten or abuse others. Subsections (A)(1) to (A)(4) of the ordinance define specific types of prohibited conduct. Subsection (A)(5) proscribes all conduct not specified in subsections (A)(1) to (A)(4) that in fact results in harassment, threats or abuse.

This court has previously considered various legislative efforts designed to prohibit particular forms of communication. In People ex rel. Van Meveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976), we considered and rejected a vagueness challenge to a telephone harassment statute. The challenged statute in that case contained the following pertinent language:

Harassment. (1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he:
....
(h) Repeatedly insults, taunts, or challenges another in a manner likely to provoke a violent or disorderly response.

§ 18-9-111(1)(h), 8 C.R.S. (1973). The defendant challenged the statute on the ground that it was unconstitutionally vague because the speaker was required to know the emotional impact his words would have on the recipient. We rejected this argument, holding that the statute required application of an objective test. People ex rel. Van Meveren, 191 Colo. at 206, 551 P.2d at 720.

In People v. Weeks, 197 Colo. 175, 591 P.2d 91 (1979), we again rejected a void for vagueness challenge to another portion of the telephone harassment statute considered in People ex rel. Van Meveren.

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