State Ex Rel. Williams v. City Court of Tucson

KRUCKER, Judge

(dissenting).

A fundamental aspect of the somewhat amorphous concept of due process of law is that a penal statute must state with reasonable clarity the acts its proscribes. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Connally v. General Construction Co., 269 U.S. 385 , 46 S.Ct. 126 , 70 L.Ed. 322 (1926). The dividing line between what is lawful and unlawful cannot be left to conjecture. Yetman v. Naumann, 16 Ariz.App. 314 , 492 P.2d 1252 (1972). In State ex rel. De Concini v. Gatewood, 10 Ariz.App. 274 , 458 P.2d 368 (1969), we stated:

“The attack upon ‘loitering’ ordinances, championed by such eminent persons as Mr. Justice Douglas, see ‘Vagrancy and Arrest on Suspicion’, 70 Yale L.J. 1 (1961), has been increasing in intensity. See Annot. 25 A.L.R.3d 836 . Nevertheless, loitering ordinances which are limited in their application to particular areas or situations which have some reasonable relationship to the commission of antisocial conduct are almost universally upheld in the face of due process attack.” 10 Ariz.App. at 276 , 458 P.2d at 370 .

In the De Concini case, supra, the ordinance did not apply indiscriminately to all persons in all places but was limited in its application. In State v. Starr, 57 Ariz. 270 , 113 P.2d 356 (1941), a loitering statute limited to the grounds of a public school or within 300 feet thereof, was upheld and the court pointed out that the word “loiter” does not signify anything bad or criminal except when given that significance in a criminal ordinance or statute.

The Ninth Circuit Court of Appeals recently held that subsection 3 of A.R.S. § 13-991, providing that a person who roams about from place to place without any lawful business shall be punished as a vagrant, is unconstitutional on its face. Anderson v. Nemetz, 474 F.2d 814 (9th Cir. 1973). In so holding, the court relied on the United States Supreme Court decision of Pa-pachristou v. City of Jacksonville, 405 U.S. 156 , 92 S.Ct. 839 , 31 L.Ed.2d 110 (1972).

The Supreme Court in Papachristou condemned the ordinance in question on vagueness grounds because (1) it failed to give a person of ordinary intelligence fair notice that his contemplated conduct was forbidden and (2) it encouraged arbitrary and erratic arrests and convictions. As to the latter aspect of vagueness, the court denounced the effect of the unfettered discretion it places in the hands of the police, stating :

“Where, as here, there are no standards governing the exercise of the discretion *495 granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.’ [Citation omitted] It results in a regime in which the poor and the unpopular are permitted to ‘stand on a public sidewalk . . . only at the whim of any police officer.’ [Citation omitted]” 92 S.Ct. at 847 .

If arbitrary and discretionary enforcement is to be prevented, laws must provide explicit standards for those who apply them. Grayned v. City of Rockford, 408 U.S. 104 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972) and cases cited therein. As stated in Grayned, supra:

“A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” 92 S.Ct. at 2299.

The subject ordinance proscribes loitering, wandering, or remaining in a public place for the purpose of begging. What sort of conduct on the part of an individual would indicate that his purpose was to beg? The standard of “for the purpose of begging” is not certain, for what might appear to one policeman to manifest such purpose might not to another. I believe that this ordinance furnishes a covenient tool for “harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.” Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736 , 84 L.Ed. 1093 (1940); Papachristou, supra. 1

For example, imagine the following situation at the corner of Congress and Stone in downtown Tucson: a group of Salvation Army workers soliciting contributions; (2) a blind man playing his ac-cordian with a tin cup available for contributions; and (3) a group of “hippie-type” individuals engaged in like conduct; No one would dispute that they are all doing exactly the same thing, namely, remaining in a public place for the manifest purpose of begging. I cannot envision a police officer, under these circumstances, arresting the Salvation Army people or the blind man. The fate of the less conventional individuals, however, is more likely to be otherwise.

Far-fetched though this illustration might appear, it serves to point up the evil denounced by Papachristou, supra. The wording of the ordinance would permit a policeman on the beat to use it as a tool against those individuals he deemed “undesirables.” There being insufficient statutory guidelines, I agree with the lower courts that the ordinance suffers from constitutional infirmity.

. The Papachristou decision was a unanimous opinion but POWELL and REHNQUIST, JJ., did not participate.