State v. Silva

525 P.2d 903, 86 N.M. 543
CourtNew Mexico Court of Appeals
DecidedJuly 17, 1974
Docket1181
StatusPublished
Cited by17 cases

This text of 525 P.2d 903 (State v. Silva) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Silva, 525 P.2d 903, 86 N.M. 543 (N.M. Ct. App. 1974).

Opinion

OPINION

HENDLEY, Judge.

Defendants were tried de novo in district court on an appeal from a conviction in magistrate court for violation of § 40A-20-10. N.M.S.A.1953 (Repl.Vol.1972). See § 36-15-1 through § 36-15-4, N.M. S.A.1953 (Repl.Vol.1972); § 36-21-42, N.M. S.A.1953 (Repl.Vol.1972); Southern Union Gas Company v. Taylor, 82 N.M. 670, 486 P.2d 606 (1971). They now appeal the judgment of the district court, affirming the magistrate court’s decision. Four isses are presented for reversal: (1) Delegation of Judicial Power; (2) Vagueness; (3) Overbreadth; and, (4) Unconstitutional Statute Application. We affirm.

The case arose from an incident on the campus of Eastern New Mexico University on April 11, 1972. On that morning the twelve defendants, mostly students, attended the regular meeting of the Administrative Council of the University to discuss additional funding for the Ethnic Studies Program. The meeting was held at 9:00 a.m. in the office of Dr. Meister, the University President, and Chairman of the Council. At approximately 10:30 a.m. Dr. Meister opened the discussion on the Ethnic Studies Program funding. At 11:15 a.m. he determined that the proceeding “ . . . was getting to be ... possibly disorderly . . . ”, and terminated the discussion. The defendants would not leave. The Council members then moved to another office to dispose of further business. At 12:00 p.m. Dr. Meister received word that the defendants were still in his office. He and the Council members then reconvened in his office to talk further with the defendants. Because of the luncheon appointments of several Council members Dr. Meister adjourned the meeting at 12:10 p.m. He then told the students he would need his office at 1:30 p.m. for other business and they must leave. At 1:30 p.m. Dr. Meister returned from lunch for an appointment with Dr. Shannon to discuss a faculty personnel matter, followed at 2:00 p.m. by another appointment. The defendants had not left. He again requested they do so. When they did not leave he and the University attorney read § 40A-20-10, supra, to the defendants. He told the attorney that the defendants were disrupting his normal business. The defendants were then arrested by police. The arrests were without violence.

Section 40A-20-10, supra, states :
“40A-20-10. Interference with members of staff, faculty or students of institutions of higher education — Trespass — Damage to property — Misdemeanors — Penalties.— A. No person shall on the campus of any community college, junior college, college or university in this state, hereinafter referred to as ‘institutions of higher education’ or at or in any building or other facility owned, operated or controlled by the governing board of any institution of higher education, willfully deny to students, school officials, employees and invitees :
“(1) lawful freedom of movement on the campus;
“(2) lawful use of the property, facilities or parts of any institution of higher education; or
“(3) the right of lawful ingress and egress to the institution’s physical facilities.
“B. No person shall on the campus of any institution of higher education, or at or in any building or other facility owned, operated or controlled by the governing board of any institution; willfully impede the staff or faculty of the institution in the lawful performance of their duties, or willfully impede a student of the institution in the lawful pursuit of his educational activities, through the use of restraint, abduction, coercion or intimidation or when force and violence are present or threatened.
“C. No person shall willfully refuse or fail to leave the property of, or any building or other facility owned, operated or controlled by the governing board of any institution of higher education upon being requested to do so by the chief administrative officer or his designee charged with maintaining order on the campus and in its facilities or a dean of a college or university, if the person is committing, threatens to commit or incites others to commit any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of the institution.
“D. Nothing in this section shall be construed to prevent lawful assembly and peaceful and orderly petition for the redress of grievances, including any labor dispute between an institution of higher education and its employees or any contractor or subcontractor or any employee thereof.
“E. Any person who violates any of the provisions of this section shall be deemed guilty of a petty misdemeanor and upon conviction thereof shall be punished by a fine not to exceed one hundred dollars ($100) or imprisoned in the county jail for a period not to exceed six [6] months or by both the fine and imprisonment.”

Defendants were charged and found guilty of violation of § 40A-20-10, supra, without specification of any subsection. Nonetheless, they have standing to only challenge the constitutionality of subsection C, particularly since they raise First Amendment issues. Compare State v. Marchiondo, 85 N.M. 627, 515 P.2d 146 (Ct.App.1973) ; see Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).

1. Delegation of Judicial Power.

Defendants claim State v. Jaramillo, 83 N.M. 800, 498 P.2d 687 (Ct.App. 1972) controls this case. We disagree. Jaramillo, invalidated a statute conditioning criminality on a finding by a state custodian that a state building was “. being used or occupied contrary to its intended or customary use. . . The court held that allowing criminal liability to turn on this essentially adjudicative determination without more adequate standards was unconstitutional. See N.M.Const. Art. Ill, § 1.

As our Supreme Court stated in Huey v. Lente, 85 N.M. 597, 514 P.2d 1093 (1973):

“ . . . if a statute is susceptible to two constructions, one supporting it and the other rendering it void, a court should adopt the construction which will uphold its constitutionality. . . .”

By interpreting § 40A-20-10, supra, consistent with this rule we find the legislature avoided the problem which arose in Jaramillo by specifying adequate standards and guidelines to be followed. Criminality is based first on a refusal to leave after requests by the chief administrative officer and second on a determination that the person “ . . .is committing, threatens to commit or incites others to commit any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of the institution.” The second determination is not made by the requesting officer but the trier of fact. City Commission of Albuquerque v. State, 75 N.M. 438, 405 P.2d 924 (1965).

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Cite This Page — Counsel Stack

Bluebook (online)
525 P.2d 903, 86 N.M. 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-silva-nmctapp-1974.