State v. Kimball

503 P.2d 176, 54 Haw. 83, 1972 Haw. LEXIS 97

• Court: Hawaii Supreme Court
• Decided: November 10, 1972
• Docket: 5166
• Status: Published

Opinions

OPINION OF THE COURT BY

KOBAYASHI, J.

This is an appeal by Evelyn Kimball, the defendant, from her conviction and sentence for unlawful possession of harmful drugs in violation of HRS §§ 328-82 (3), 328-84 (a) and 328-86 (c).

FACTS

On the afternoon of June 11, 1970, while school was out for the summer, the defendant and four others were sitting under a tree on school grounds. Upon a complaint from an unknown person, the defendant and others with her were arrested for being unlawfully on school premises in violation of section 13-5.1 of the Revised Ordinances of Honolulu. After the arresting officer frisked the others for weapons, he noticed the defendant walking around the tree with her left hand concealed behind her. He asked the defendant what she had in her hand. The defendant said “nothing” but the arresting officer grabbed her hand, determined to find out whether defendant had a weapon, whereupon defendant dropped to the ground two small packages of drugs. Thereupon defendant was charged for the unlawful possession of harmful drugs in violation of HRS §§ 328-82 (3), 328-84 (a) and 328-86 (c).

Prior to trial the defendant moved to suppress the drugs taken incident to her arrest alleging that the arrest upon which the search was based was made pursuant to:

(1) An ordinance (section 13-5.1 of the Revised Ordinances of Honolulu) which was void, having been pre-empted by HRS § 727-24 and Act 97, S.L.H. 1965; and

(2) An ordinance that is unconstitutional for vagueness and overbreadth.

Upon denying the defendant’s motion to suppress, the trial court held the following:

(1) Though the arrest was made pursuant to a city ordinance (section 18-5.1, Revised Ordinances of Honolulu), the legality of such arrest does not stand or fall on the question of validity of the pre-empted ordinance so long as defendant’s conduct concurrently violates a state statute of similar import.

(2) HRS § 727-24 satisfies the pre-emption provision of HRS § 70-105 and thus pre-empts section 13-5.1, Revised Ordinances of Honolulu. Therefore the constitutionality of the latter ordinance need not be decided.

(3) HRS § 727-24 is not unconstitutionally vague and thus supports the reasonableness of the search of the defendant incident to her arrest.

Thereafter, upon trial, defendant was found guilty of the crime charged.

Defendant was arrested initially for violating section 13-5.1 of the Revised Ordinances of Honolulu. Said section 13-5.1 provides as follows:

No person shall go or remain upon, loiter around, in or upon or play or engage in any game in or upon any public school buildings or public school grounds, without lawful business or excuse for so doing.

The same subject matter is dealt with in HRS § 727-24 which provides:

§727-24 Intruding, loitering, loafing, or idling on school premises; penalty. Any person intruding, or loitering, or loafing, or idling, without proper authority upon the premises of any school, public or private, of any school dormitory, or of the Hawaii youth correctional facilities, may be arrested by any police officer, without any warrant, and on the complaint of the principal or other person in charge of the school, or of any trustee of the same; upon conviction thereof he shall be fined not more than $200 or imprisoned not more than six months, or both. Nothing in this section shall be construed (1) to preclude the right of the parent, or legal guardian, or other person having written permission of the parent to take custody of a student during regular school hours, and (2) to preclude the punishment of the offender for any other offense committed on the premises, nor of the right of action for civil damages.

PRE-EMPTION OF THE CITY ORDINANCE

HRS § 70-105 provides:

§70-105 Effect of state statutes. No ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute of the State; provided that the ordinance is not inconsistent with and does not tend to defeat the intent or object of the statute or of any other statute; provided also that the statute does not disclose an express or implied intent that the same shall be exclusive, or uniform throughout the State. (Emphasis added.)

The trial court found that HRS § 727-24 clearly preempted section 13-5.1 of the Revised Ordinances of Honolulu on the basis of In re Application of Anamizu, 52 Haw. 550, 481 P.2d 116 (1971). In construing the express or implied intent provision of HRS § 70-105 this court, in Anamizu, held that the existence of a comprehensive state statute regulating the licensing of contractors demonstrated an implied intent to be the exclusive legislation in the field and to pre-empt a similar city ordinance.

In finding that the legislature intended HRS § 727-24 to be the exclusive legislation in the area, the trial court considered the fact that although the city and county of Honolulu originally had a proprietary interest in the school grounds and buildings, it was divested of this function in 1965 when the state took control over school construction and management.¹

We find that the trial court correctly held that HRS § 727-24 pre-empted section 13-5.1 of the Revised Ordinances of Honolulu and that the statute evinced an implied intent to be the exclusive legislation in the area.

Notwithstanding the fact that a pre-empted ordinance is void and incapable of supporting a valid arrest, if the defendant’s conduct is also violative of a similar state statute, the arrest may nevertheless be valid. That being the situation here, it is of no effect that the arresting officer had the ordinance in mind rather than the statute when effecting the arrest. The point of importance is that the facts and circumstances within the officer’s knowledge afforded probable cause to arrest under either the ordinance or the statute. Brinegar v. United States, 338 U.S. 160 (1949); State v. Chong, 52 Haw. 226, 473 P.2d 567 (1970).

IS HRS § 727-24 VOID FOR VAGUENESS?

Appellant claims that the words “loiter”² and “without proper authority” contained in HRS § 727-24 are unconstitutionally vague.

The law is clear that if a penal statute, by its terms, does not sufficiently describe nor give fair notice of those acts which it forbids, the statute is of vague meaning and runs afoul of the “due process” protections of the fourteenth amendment of the United States Constitution and article I, section 2 of the Hawaii State Constitution. Connally v. General Construction Company, 269 U.S. 385, 391 (1926); State v. Miller, 54 Haw. 1, 501 P.2d 363 (1972); State v. Grahovac, 52 Haw. 527, 534-35, 480 P.2d 148, 153 (1971); State v. Abellano, 50 Haw. 384, 385, 441 P.2d 333 (1968); Territory v. Naumu, 43 Haw. 66, 68 (1958); Territory v. Anduha, 31 Haw. 459 (1930), aff’d 48 F.2d 171 (9th Cir. 1931). Further, a law of vague meaning which prescribes no fixed standard by which guilt may be adjudged renders the guilt of an accused person subject to the whim or caprice of the policeman on the beat, the judge or the jury. Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966); Shuttlesworth v. Birmingham, 382 U.S. 87, 90 (1965).

We cannot say that the “without proper authority” clause of HRS § 727-24 fails to give fair notice of the conduct that it forbids.

In determining the meaning of a statute, laws in pari materia, or upon the same subject matter, will be construed with reference to each other.³ Besides said HRS § 727-24, HRS § 298-23 also deals with the use of school premises. HRS § 298-23 provides as follows:

§298-23 Use of school facilities for recreational and community purposes. All public school buildings, facilities, and grounds shall be available for general recreational purposes and for public and community group meetings, whenever these activities do not interfere with the normal and usual activities of the school, and its pupils, concerned. Any law or portion of any law to the contrary notwithstanding, the department of education and the departments and officials of the several counties entrusted with the control, supervision, and care of school buildings, facilities, or grounds shall issue such rules and regulations as are deemed necessary to carry out the purposes of this section.

Thus, it is clear that HRS § 298-23 provides, inter alia, that the department of education shall issue rules and regulations to determine when use of school premises is or is not authorized. In his decision on the motion to suppress, the trial judge recognized the fact that the department of education had promulgated a substantial set of rules covering the following areas:

(1) Wh at and when particular uses of school premises are authorized. Rules 3, 4, 5, 6.4, 6.5, 6.6, 6.7, 6.8 (c) 1-4 of Departmental Rules and Directives, Department of Education, State of Hawaii, 1969, 7000 Series (adopted by Board of Education on March 4, 1971).

(2) How authorization may be procured for particular uses of school premises. Rules 6.2 and 6.3 specifically provide:

6.2 Applying for Use. Applications for the use of buildings, facilities or grounds must be submitted in writing in accordance with the Department’s Administrative Regulations.

6.3 Approvals. Authority to approve the use of buildings, facilities or grounds is vested in the District Superintendent or his designated representative.

Generally, administrative rules and regulations promulgated pursuant to statutory authority have the force and effect of law.⁴

It is apparent that any use of school premises not authorized by the departmental rules is “without proper authority”. Thus we are of the opinion that since the said laws in pari materia give fair notice of the meaning of “without proper authority”, HRS § 727-24 is not unconstitutionally vague.

OVERBREADTH

Appellant claims that her conduct, innocent in all respects, was indiscriminately proscribed by the broad sweep of HRS § 727-24. In Anduha this court considered the concept of statutory overbreadth and stated at 462:

A criminal statute that is so broad in its prohibitive terms as to include acts that are inherently harmless as well as acts which are potentially dangerous, cannot, for constitutional reasons, be upheld.

Since the state is charged with the duty of public education, there is no question that the state may regulate activity on school premises as a valid exercise of its police power. However, this court has recognized that, as broad as this police power may be, it is not plenary and may not infringe on those fundamental rights common to all. Anduha, supra at 460.

In Anduha this court struck down a loitering statute as being overbroad because it infringed on the constitutionally protected freedom of locomotion or movement. Though not express, this court has recognized that the freedom of movement clearly inheres in the right to life, liberty and the pursuit of happiness as guaranteed by the Hawaii and United States Constitution. A hellano, supra (Levinson, J., concurring) at 386-87.

No similar right exists in this case. We are of the opinion that one does not have a constitutional right to go upon school premises at any time and for any reason that he may choose. Anduha involved loitering on a public street. Though school property is public in the sense that it is government property, it is not public in the sense that it is subject to unfettered public use. The state interest is such that total exclusion of all persons without proper authority is a perfectly reasonable exercise of its police power. People v. Johnson, 6 N.Y.2d 549, 552, 161 N.E.2d 9, 10 (1959). See also State v. Jordan, 53 Haw. 634, 500 P.2d 560 (1972). Thus, we are of the opinion that HRS § 727-24 cannot be deemed unconstitutionally overbroad and for that reason both the defendant’s arrest and the search incident thereto are valid.

Brook Hart, Special Deputy Public Defender {James Blanchfield with him on the briefs; Donald Tsukiyama, Public Defender, of counsel) for defendant-appellant. Leland Spencer, Deputy Prosecuting Attorney {Barry Chung, Prosecuting Attorney, and Erick T. S. Moon, Deputy Prosecuting Attorney, on the brief) for plaintiffappellee.

Justice Abe in his dissenting opinion raises the following issue: A police officer cannot arrest an offender without a warrant of arrest if the officer had not, prior to the arrest, received “a complaint by the principal or other person in charge”.

The appellant’s appeal, however, was premised strictly on constitutional grounds.

Supreme Court Rule 3 (b) (3) provides that questions not presented in appellant’s brief on appeal will be disregarded.

Affirmed.

1 Section 4 of Act 97, Session Laws of Hawaii 1965 provided:

The state department to which functions have been assigned by the Governor shall succeed to nil the rights and powers exercised, and all of the duties and obligations incurred by the counties in the exercise of the functions transferred, whether such powers, duties and obligations are mentioned in or granted by any law, contract or other documents; . . . (emphasis added) .

2 Appellant makes a claim but gives no argument that the word loiter is vague. The word loiter must be construed in the context of the rest of the statute and is not per se unconstitutionally vague. Ricks v. United States, 414 F.2d 1111 (D.C. Cir. 1968).

3 HRS § 1-16 provides:

Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another.

4 Davis, Administrative Law Text § 5.03 at 126.

In State v. Lee, 51 Haw. 516, 522, 465 P.2d 573, 577 (1970), we held that regulations promulgated by the Coordinator (Traffic) gave sufficient warning to satisfy due process.

Also HRS § 91-1 on administrative procedure defines "rule” as . . . each agency statement of general or particular applicability and future effect that implements, interprets or prescribes law or policy . . . (emphasis added).