Jurisdictional Statement — Flannery v. City of Norfolk

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the Gnited States

OCTOBER TERM, 1975

No. 75-966 ‘

ROBERT M. FLANNERY,

Appellant,

CITY OF NORFOLK, VIRGINIA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF VIRGINIA.

JURISDICTIONAL STATEMENT

THOMAS W. MOSS, JR., Esquire

Moss & Moss

830 Maritime Tower

Norfolk, Virginia 23510

Attorney for Appellant

Of Counsel:

HUNTER W. SIMS, JR., Esquire

Canoles, Mastracco, Martone, Barr & Russell

1710 Virginia National Bank Building

Norfolk, Virginia 23510

Washington, D.C. ¢ CLB PUBLISHERS e LAW PRINTING CO. « (202) 393-0625

INDEX

Page

ee 6 ee 6 ole tah abe és oes e l

STATEMENT OF THE GROUNDS ON WHICH

THE JURISDICTION OF THIS COURT IS

Dt CteasceteckGhete es dies oie e 600.006 2

QUESTION PRESENTED BY THE APPEAL ........... 3

STATEMENT Or THE FACTS OF THECASE .......... 4

THE FEDERAL QUESTION PRESENTED IS SUB-

RSS a SAG eee 6

eee ee ce ee Cees kab seas e ee 10

APPENDIX A STATUTE INVOLVED ................ la

APPENDIX B OPINION OF THE SUPREME

ee ae eee ee eh eh eewes lb

APPENDIX C COPY OF NOTICE OF APPEAL ......... lc

TABLE OF AUTHORITIES

Cases: Page

Ashton v. Kentucky, 384 U.S. 195(1966) ...........4. 8

Baggett v. Bullitt, 377 U.S. 360 (1964) ............... 8

Coates v. Cincinnati, 402 U.S. 611 (1971) ............. 8

Colten v. Kentucky, 407 U.S. 104 (1972) ............. 7

Connally v. General Construction Co., 269 U.S. 385

DE che Glee Ran sh eEROeSee Geeks 6ee0s 8

Cramp v. Board of Public Instruction, 368 U.S. 278

DE £occsUeecCeeraceUbadeee sas be awi sees 7

Dombrowski v. Pfister, 380 U.S. 479 (1965) ............ 8

Giaccio v. Pennsylvania, 382 U.S. 399(1966) .......... 2,8

Grayned v. City of Rockford, 408 U.S. 104 (1972) ....... 7

Gregory v. Chicago, 394 U.S. 111 (1969) .............. 8

Harris v. United States, 315 A.2d 569 (D.C.App.

RR re) Ale AE ae 9

(ii)

Herndon v. Lowry, 301 U.S. 242 (1937) ........

Hoyt v. Florida, 368 U.S. 57 (1961) ...........

International Hu-vester Co. v. Kentucky, 234 US.

SPE ab uNhas cae bas keebeeeeeeKs

Interstate Circuit v. Daiias, 390 U.S. 676 (1968) ...

Jordan v. DeGeorge, 341 U.S. 223 (1951) .......

Kunz v. New York, 340 U.S. 290 (1951) ........

Lanzetta v. New Jersey, 306 U.S. 451 (1939) .....

Papachristou v. City of Jacksonville, 405 U.S. 156

Pe er ey ery Te ee eee

Pope v. Commonwealth, 131 Va. 776, 109 S.E. 429

SE 4 6 FU baie one wheter eek tesees

Saia v. New York, 334 U.S. 558 (1948) .........

Shuttlesworth v. Birmingham, 382 U.S. 87 (1965) ..

Smith v. California, 361 U.S. 147 (1959) ........

opeiser v. Randall, 357 U.S. 513 (1958) .........

Stromberg v. California, 283 U.S. 359 (1931) .....

Thornhill v. Alabama, 310 U.S. 88 (1940) .......

United States v. Cohen Grocery Co., 255 US. 81

Dt +0 s4s scenes ed bed he vane oe es

United States v. Harriss, 347 U.S. 612 (1954) .....

Winters v. New York, 333 U.S. 507 (1948) ......

Statutes:

City Code of the City of Norfolk, Virginia, 1958

PO cc ncccaeceteveeveenssteess

United States Code:

Title 28, U.S.C. Section 1257 (2) ...........

Constitutional Provisions:

Constitution of the United States

Fourteenth Amendment ..................

= sk es

ys & =

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No.

ROBERT M. FLANNERY,

Appellant,

CITY OF NORFOLK, VIRGINIA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF VIRGINIA.

JURISDICTIONAL STATEMENT

THE OPINIONS BELOW

The Opinion of the Supreme Court of Virginia is

reported at 216 Va.__, 218 S.E.2d 730 (1975), and

appears herein as Appendix [ No other written

opinions have been delivered. A

2

STATEMENT OF THE GROUNDS ON WHICH

THE JURISDICTION OF THIS COURT

IS INVOKED

(i) This is a criminal prosecution against the

appellant, Robert M. Flannery, charged and convicted

in the Circuit Court of the City of Norfolk, Virginia, of

keeping and maintaining a disorderly house in violation

of Section 31-18 of the City Code of the City of

Norfolk, Virginia, 1958. The appellant contends that

Section 31-18 is unconstitutional on its face, being void

for vagueness. The decision of the Supreme Court of

Virginia was in favor of the validity of Section 31-18.

(ii) The judgment or decree sought to be reviewed

is the ruling of the Supreme Court of Virginia

upholding the constitutionality of the ordinance and

affirming the appellant’s conviction. That ruling was

issued and entered on October 10, 1975. No petition

for rehearing was filed. The Notice of Appeal was filed

in the Supreme Court of Virginia, the court possessed

of the record, and this jurisdictional statement was filed

in the Supreme Court of the United States within

ninety days after October 10, 1975.

(iii) The jurisdiction of this court is invoked under

28 U.S.C., Section 1257(2). The following decisions

sustain the jurisdiction of the SupremeCourt to review

the judgment on apreal in this case:

Giaccio v. Pennsylvania, 382 U.S. 399 (1966);

Hoyt v. Florida, 368 U.S. 57 (1961).

(iv) The constitutional validity of Section 31-18 of

the City Code of the City of Norfolk, Virginia, 1958, is

here involved. The full text of that ordinance is as

follows:

3

Sec. 31-18. Disorderly houses.

“It shall be unlawful for any person in the city

to keep, maintain or operate, for himself or as an

officer of or agent for any corporation, associa-

tion, club, lodge or other organization, or under

the guise of any corporation, association, club,

lodge or other organization, any disorderly house

or place where disorderly persons meet or may

meet for the purpose of illegally dispensing or

indulging in intoxicating liquors, gaming or boister-

ous or other disorderly conduct. Each day’s

keeping of any such place shall constitute a

separate offense, and in any prosecution for this

offense, the general reputation of such place may

be proved.

“It shall be-unlawful for any person to frequent,

reside in or visit any such place for the purpose of

illegally dispensing or indulging in intoxicating

liquors, gaming or boisterous or other disorderly

conduct.

“Any person violating the first paragraph of this

section shall be punished by a fine of not less than

twenty-five dollars nor more than five hundred

dollars or by confinement in jail not exceeding six

months, either or both; and any person violating

the second paragraph of this section shall be

punished by a fine of not less than five dollars nor

more than one hundred dollars.”

QUESTION PRESENTED BY THE APPEAL

A portion of Section 31-18 of the City Code of the

City of Norfolk, Virginia, 1958, makes it unlawful for

any person to keep, maintain or operate any disorderly

house. The question presented is whether that portion

4

of the ordinance is void for vagueness, both in the sense

that it “fails to give a person of ordinary intelligence

fair notice that his contemplated conduct is forbidden

by the statute,” United States v. Harriss, 347 U.S. 612,

617 (1954), and because it encourages arbitrary and

erratic arrests and convictions. Thornhill v. Alabama,

310 U.S. 88 (1940); Herndon v. Lowry, 301 U.S. 242

(1937).

STATEMENT OF THE FACTS

OF THE CASE

Robert M. Flannery, the appellant herein, was

charged in an arrest warrant with “keeping and

maintaining a disorderly house” on or about February

28, 1974, in violation of Section 31-18 of the City

Code of the City of Norfolk, Virginia, 1958. He was

convicted of that offense, a misdemeanor, in the lower

court not of record and, in a trial de novo, in the

Circuit Court of the City of Norfolk without a jury.

One of the central issues at trial was whether the

“Business Man’s Massage Parlor’, admittedly owned and

operated by the appellant, was a disorderly house on or

about February 28, 1974, within the meaning of the

City Code. ve

The evidence accepted by the trial court established

that on February 28, 1974, Carl E. Peterson, a Norfolk

police officer, visited the “Business Man’s Massage

Parlor”. He paid fifteen dollars and received a sauna, a

shower and a massage which included masturbation by

a female masseuse. After the massage, Officer Peterson

paid the masseuse an additional fifteen dollars.

Thereupon, “she proceeded to give oral sodomy.”

5

(Tr. 123)' He interrupted her, got dressed, and left the

massage parlor. Officer Peterson did not see the

appellant during the course of his visit.

In addition to Officer Peterson’s experiences, the

prosecution introduced evidence of prior occasions from

August 24, 1973, to February 8, 1974, where male

undercover police officers or paid male informers visited

the “Business Man’s Massage Parlor”’.2 The testimony

showed that on these prior occasions the female

massueses, who were Flannery’s employees, performed

various “services” which included acts of masturbation

and oral sodomy. The massueses were virtually nude

while engaged in these activities. The evidence also

established that the masseuses solicited the clientel for

prostitution and sodomy. Furthermore, there was

testimony that the massage parlor, which was open to

the public, was reputed in the community to be a

brothel.? Evidence that Flannery knew of these specific

instances at the time they occurred was non-existent.

Flannery attacked the constitutionality of the

ordinance in the Circuit Court of the City of Norfolk

References marked “Tr.” are to the transcript of the trial in

the Circuit Court of the City of Norfolk.

2In Virginia, in order to prove that an establishment is a

disorderly house, there must be a recurrence of the improper

practices. “It is sufficient to meet this requirement if they occur

with such frequency, and during such substantial period of time

covered by the indictment, as to constitute a continuing menace

to public morals.” Pope v. Commonwealth, 131 Va. 776, at 797,

109 S.E. 429, at 436 (1921).

3Section 31-18 of the City Code of the City of Norfolk,

Virginia, provides, in part, “...in any prosecution for this

offense, the general reputation of such place may be proved.”

6

and in the Supreme Court of Virginia. In the trial and

on appeal, he argued that Section 31-18 of the City

Code of the City of Norfolk, Virginia, 1958, is void for

vagueness and therefore unconstitutional on its face

under the Fourteenth Amendment of the United States

Constitution. On May 24, 1974, the trial court denied

Flannery’s constitutional challenge in an oral opinion

rendered from the bench at the conclusion of the trial.

{Tr. 10 (25)—15 (8); 342 (14)—342 (21)]. On October

10, 1975, the Supreme Court of Virginia held that the

portion of the city ordinance under which Flannery was

convicted, i.e., “keeping and maintaining a disorderly

house”, was separable from the remainder of the

ordinance and the separable portion was constitutional.

The Supreme Court of Virginia is the highest court in

the State of Virginia.

On September 6, 1975, the trial court set bond at

$1,000.00 pending disposition of the matter in the

Supreme Court of Virginia and appellant was freed

pursuant to that bond. On October 27, 1975, the

Supreme Court of Virginia issued an order staying the

execution of the judgment rendered on October 10,

1975. The appellant remains free on bond pending this

appeal.

THE FEDERAL QUESTION PRESENTED

IS SUBSTANTIAL

This appeal raises the question whether an ordinance

which proscribes “keeping and maintaining a disorderly

house” is void for vagueness and therefore violative of

the due process provisions of the Fourteenth Amend-

ment to the Constitution.

7

In analogous situations on a claim of void for

vagueness, this court has held that substantial federal

questions are raised. Papachristou v. City of Jackson-

ville, 405 U.S. 156 (1972); Colten v. Kentucky, 407

U.S. 104 (1972); Lanzetta v. New Jersey, 306 U.S. 451

(1939); Grayned v. City of Rockford, 408 U.S. 104

(1972).

The precedents established by this court require the

reversal of the decision of the Supreme Court of

Virginia. It is a basic principle of the due process clause

of the Fourteenth Amendment that state statutes and

city ordinances are void for vagueness if their

prohibitions are not clearly defined. A criminal law

must give a person of ordinary intelligence fair notice

that his contemplated conduct is forbidden. United

States v. Harriss, 347 U.S. 612 (1954). No one may be

required at peril of life, liberty or property to speculate

as to the meaning of penal statutes. All are entitled to

be informed as to what the State commands or forbids.

Lanzetta v. New Jersey, 306 U.S. 451 (1939).

The rationale behind the vagueness doctrine is best

summarized by this court in Grayned v. City of

Rockford, 408 U.S. 104, at 108-109 (1972). “Vague

laws offend several important values. First, because we

assume that man is free to steer between lawful and

unlawful conduct, we insist that laws give the person of

ordinary intelligence a reasonable opportunity to know

what is prohibited so that he .nay act accordingly.

Vague laws may trap the innocent by not providing fair

warning. Papachristou v. City of Jacksonville, 405 U.S.

156 (1972); Cramp v. Board of Public Instruction, 368

U.S 278 (1961); United States v. Harriss, 347 U.S. 612

(1954); Jordan v. DeGeorge, 341 U.S. 223 (1951);

8

Lanzetta v. New Jersey, 306 U.S. 451 (1939); Connally

v. General Construction Co., 269 U.S. 385 (1926);

United States v. Cohen Grocery Co., 255 US. 81

(1921); International Harvester Co. v. Kentucky, 234

U.S. 216 (1914). Second, if arbitrary and discrimina-

tory enforcement is to be prevented, laws must provide

explicit standards for those who apply them. Papa-

christou v. City of Jacksonville, supra; Coates vy.

Cincinnati, 402 U.S. 611 (1971); Gregory v. Chicago,

394 U.S. 111 (1969); Interstate Circuit v. Dallas, 390

U.S. 676 (1968); Ashton v. Kentucky, 384 U.S. 195

(1966); Giaccio v. Pennsylvania, 382 U.S. 399 (1966);

Shuttlesworth vy. Birmingham, 382 U.S. 87 (1965);

Kunz v. New York, 340 U.S. 290 (1951); Saia v. New

York, 334 U.S. 558 (1948); Thornhill v. Alabama, 310

U.S. 88 (1940); Herndon vy. Lowry, 301 U.S. 242

(1937). 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 (footnote 5 omitted).... Uncertain mean-

ings inevitably lead citizens to ‘steer far wider of the

unlawful zone’...than if the boundaries of the

forbidden areas were clearly marked.’ Baggett v. Bullitt,

377 U.S. 360, at 372 (1964), quoting Speiser - v.

Randall, 357 U.S. 513, 526 (1958). See Jnterstate

Circuit v. Dallas, supra, at 684; Ashton v. Kentucky,

supra, at 195, 200-201: Dombrowski v. Pfister, 380

U.S. 479, 486 (1965); Smith v. California, 361 U.S.

147, 150-152 (1959); Winters v. New York, 333 US.

507 (1948); Stromberg v. California, 283 U.S. 359

(1931).

In arriving at their decision that the portion of the

ordinance under which Flannery was convicted was

9

constitutionally sound, the Supreme Court of Virginia

went through a two-tier reasoning process. First, they

held that “keeping and maintaining a disorderly house”

may properly be excised and considered separately from

the remainder of the ordinance.* Secondly, they held

that the excised portion of the ordinance, under which

the appellant was convicted, was not void for vagueness

and unconstitutional. The court found that the keeping

of a disorderly house was a common law offense

defined as “the maintenance of premises upon which

activity occurred that either created a public disturb-

ance or, although concealed from the public, con-

stituted a nuisance per se, such as a gambling house or

a bawdy house.” Harris v. United States, 315 A.2d 569,

at $72 (D.C. App. 1974) (footnotes omitted). Guided

by this common law definition, the Court found that a

person of ordinary intelligence can readily understand

that it is unlawful in Norfolk to maintain a place where

persons engage in activity which either creates a public

disturbance or, although hidden from public view,

constitutes a nuisance per se. Thus, according to the

opinion filed by the Supreme Court of Virginia in this

matter, the void for vagueness challenges are met. The

court’s faulty reasoning is blatantly apparent upon a

reading of the opinion. The common law definitions of

a “disorderly” house, upon which the court based its

opinion, are equally as vague as the ordinance. A person

of ordinary intelligence can no more ascertain what a

“Section 1-3 of the Norfolk City Code provides:

“Sec. 1-3. Seperability.

If any part or parts, section or subsection, clause or phrase

of this Code is for any reason declared to be unconstitutional

or invalid, such decision shall not affect the validity of the

remaining portion of this Code.”

10

“public disturbance” is or a “nuisance per se”’ is, than

can he ascertain what is meant by a “disorderly” house.

This court has repeatedly struck down ordinances of

the type the appellant challenges here. The latest

Supreme Court of the United States decision applicable

to the facts at hand is Papachristou v. City of Jackson,

supra, wherein a Jacksonville, Florida, vagrancy ordi-

nance which deemed that persons engaging in certain

proscribed activity, including being a “disorderly

person”, would be considered vagrants and be subject

to criminal sanctions. The ordinance was struck down

as being void for vagueness.

CONCLUSION

This appeal raises an issue of fundamental importance

to our system of criminal justice. Probable jurisdiction

should therefore be noted.

Respectfully submitted,

THOMAS W. MOSS, JR., Esquire

Moss and Moss

830 Maritime Tower .

Norfolk, Virginia 23510

Attorney for Appellant

Of Counsel:

HUNTER W. SIMS, JR., Esquire

Canoles, Mastracco, Martone, Barr & Russell

1710 Virginia National Bank Building

Norfolk, Virginia 23510

wy _

ae Se >

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APPENDIX A

NORFOLK CITY CODE §31-18

Sec. 31-18. Disorderly houses.

It shall be unlawful for any person in the city to

keep, maintain or operate, for himself or as an officer

of or agent for any corporation, association, club, lodge

or other organization, or under the guise of any

corporation, association, club, lodge or other organiza-

tion, any disorderly house or place where disorderly

persons meet or may meet for the purpose of illegally

dispensing or indulging in intoxicating liquors, gaming

or boisterous or other disorderly conduct. Each day’s

keeping of any such place shall constitute a separate

offense, and in any prosecution for this offense, the

general reputation of such place may be proved.

It shall be unlawful for any person to frequent,

reside in or visit any such place for the purpose of

illegally dispensing or indulging in intoxicating liquors,

gaming or boisterous or other disorderly conduct.

Any person violating the first paragraph of this

section shall be punished by a fine of not less than

twenty-five dollars nor more than five hundred dollars

or by confinement in jail not exceeding six months,

either or both; and any person violating the second

paragraph of this section shall be punished by a fine of

not less than five dollars nor more than one hundred

dollars. (Code 1950, §29-13; Ord. 18,721, 2-5-57, §1.)

Ib

APPENDIX B

PRESENT: All the Justices

OPINION BY JUSTICE

A. CHRISTIAN COMPTON

Richmond, Virginia,

October 10, 1975

ROBERT M. FLANNERY

v. Record No. 750022

CITY OF NORFOLK

FROM THE CIRCUIT COURT OF THE CITY

OF NORFOLK

William Moultrie Guerry, Judge

The defendant, Robert M. Flannery, was convicted

by the circuit court, sitting without a jury, upon a

warrant which charged him with ‘“‘keeping and maintain-

ing a disorderly house”, in violation of a Norfolk City

Ordinance. He appeals from the judgment of conviction

which ordered a fine, a jail term (a portion of which

was suspended), and supervised probation.

The central issue on appeal is whether §31-18 of the

Norfolk City Code is unconstitutional on its face.

Specifically, the question is whether the ordinance ~is

void for vagueness. It provides that:

“It shall be unlawful for any person in the city to

keep, maintain or operate, for himself or as an

officer of or agent for any corporation, associa-

tion, club, lodge or other organization, or under

the guise of any corporation, association, club,

lodge or other organization, any disorderly house,

or place where disorderly persons meet or may

meet for the purpose of illegally dispensing or

2

2b

indulging in intoxicating liquors, gaming or boister-

ous or other disorderly conduct. Each day’s

keeping of any such place shall constitute a

separate offense, and in any prosecution for this

offense, the general reputation of such place may

be proved.

“It shall be unlawful for any person to frequent,

reside in or visit any such place for the purpose of

illegally dispensing or indulging in intoxicating

liquors, gaming or boisterous or other disorderly

conduct.

“Any person violating the first paragraph of this

section shall be punished by a fine of not less than

twenty-five dollars nor more than five hundred

dollars or by confinement in jail not exceeding six

months, either or both; and any person violating

the second paragraph of this section shall be

punished by a fine of not less than five dollars nor

more than one hundred dollars.”

The evidence, viewed in the light most favorable to

the City, establishes that during the period from August

24, 1973, to February 28, 1974, the defendant owned

and operated the “Business Man’s Massage Parlor,”

located in Norfolk. The testimony showed that during

this period the masseuses, who were employees of the

defendant, performed for the male customers various

“services’’ which included acts of masturbation and oral

sodomy. The masseuses were virtually nude while

engaged in these activities. The evidence also established

that the masseuses solicited the clientele for prostitu-

tion and sodomy. Furthermore, there was testimony

that the massage parlor, which was open to the public,

was reputed in the community to be a brothel.

The defendant attacks the constitutionality of the

ordinance, claiming that “‘it is vague and ambiguous and

is violative of the due process requirement of

3b

definiteness in criminal statutes.”” He argues there was

no evidence that intoxicating liquors were dispensed or

used on the premises, nor was there any evidence of

gaming or boisterous conduct thereon. He reasons,

therefore, that ‘“[e]ffectively,...what is left is a

conviction for keeping and maintaining a house where

disorderly persons meet for the purposes of indulging in

disorderly conduct”, which he contends does not

withstand a constitutional challenge.

The City argues, inter alia, that the ordinance

“conceptually” contains separate parts, the first perti-

nent part providing: “It shall be unlawful for any

person in the city to keep, maintain or operate, for

himself ...any disorderly house....” It emphasizes

that Flannery was charged with a violation of only that

part of the ordinance. It takes the position that such

part meets constitutional requirements because “keeping

a disorderly house” is a common law offense with a

constitutional common law definition. We agree and

affirm.

Manifestly, an analysis of the ordinance shows that

its first sentence is logically divided into distinct and

different parts by the disjunctive “or,” which follows

the phrase “disorderly house.’ The first part of this

sentence proscribes, on the one hand, keeping,

maintaining or operating “‘any disorderly house,’’ while

the second part, on the other hand, prohibits keeping,

maintaining or operating any “place where disorderly

persons meet or may meet for the purpose of illegally

dispensing or indulging in intoxicating liquors, gaming

or boisterous or other disorderly conduct.” The first

part is not contingent upon the second nor does the

latter qualify the former. A ‘“‘house” may be “‘disor-

2+ -

7 eee

EE

4b

derly” without being a “place” where illicit trafficking

in alcohol, gambling or noisy activity takes place, as,

for example, a house of prostitution or a place open to

the public where persons congregate to engage in

homosexual conduct.

Accordingly. we conclude that the first part of the

ordinance, which prohibits keeping, maintaining or

operating a disorderly house, may properly be excised

and considered separately from the remainder of the

ordinance. Even if we assume that the remainder of the

first and second paragraphs is invalid—an issue we do

not reach in this case—this severance for the purpose of

constitutional analysis is authorized by the saving

provisions of Norfolk City Code §1-3,! and the valid

portion may stand alone. This is so because the

presumption of inseparability is reversed by the

foregoing ordinance and, further, because we are of the

opinion that it was the intent of the Norfolk City

Council to make the keeping, maintaining or operating

of a disorderly house a criminal offense, even though it

was included in an ordinance which purported to make

other acts criminal offenses. Wicks v. City of

Charlottesville, 215 Va. 274, 277, 208 S.E.2d 752, 755

(1974). See Board of Supervisors v. Rowe, 216 Va.

128, 147-48, 216 S.E.2d 199, 214-15 (1975).

As we turn to the crux of this appeal, it should be

remembered, as the City emphasizes, that the defendant

'“Sec. 1-3. Separability. If any part or parts, section or

subsection, sentence, clause or phrase of this Code is for any

reason declared to be unconstitutional or invalid, such decision

shall not affect the validity of the remaining portions of this

Code.”

Sb

was charged in the warrant and tried for “keeping and

maintaining a disorderly house.’”’ He was not charged

with maintaining “ta place where disorderly persons

meet or may meet” either “for the purpose of illegally

dispensing or indulging in intoxicating liquors” or for

the purpose of “gaming or boisterous or other

disorderly conduct.” Nor was he charged under the

second paragraph of the ordinance. The evidence was

entirely sufficient to support a conviction of the

charged offense and we reject out of hand the

defendant’s claim that the evidence was insufficient.

This brings us directly to the constitutional issue. If

the offense stated in the excised part of the ordinance

is ambiguous, the conviction must be set aside. But if

the statement of the offense is not void for vagueness,

the conviction must stand.

The United States Supreme Court, in applying the

vagueness doctrine to state statutes and city ordinances

under the due process requirement of the Fourteenth

Amendment, has stated that the doctrine is based on

the principle that no person “‘shall be held criminally

responsible for conduct which he could not reasonably

understand to be proscribed.” Colten v. Kentucky, 407

U.S. 104, 110 (1972), quoting United States v. Harriss,

347 U.S. 612, 617 (1954). “The root of the vaguenéss

doctrine is a rough idea of fairness. It is not a principle

designed to convert into a constitutional dilemma the

practical difficulties in drawing criminal statutes both

general enough to take into account a variety of human

conduct and sufficiently specific to provide fair warning

that certain kinds of conduct are prohibited.”’ 407 U.S.

at 110. An ordinance is void for vagueness if it fails to

give a reasonably intelligent person fair notice that his

-

ee ee a

6b

contemplated conduct is forbidden by the enactment,

and if “it encourages arbitrary arrests and convictions.”

Papachristou v. City of Jacksonville, 405 U.S. 156, 162

(1972). See Caldwell v. Commonwealth, 198 Va. 454,

458, 94 S.E.2d 537, 549 (1956).

In determining whether a legislative enactment is

unconstitutionally vague, the Supreme Court has

considered whether the words used have a well-settled

common-law meaning, Lanzetta v. New Jersey, 306 U.S.

451, 454-55 (1939); Connally v. General Construction

Co., 269 U.S. 385, 391 (1926), and whether the state’s

case law demonstrates that the language used, while

otherwise vague, has been judicially narrowed. Grayned

v. City of Rockford, 408 U.S. 104, 111-12 (1972). See

Parker v. Levy, 417 U.S. 733, 752-54 (1974).

We now examine the excised language of the

ordinance under consideration in the light of the

foregoing established criteria.

The keeping of a disorderly house? was a common-

law offense, 2 Wharton’s Criminal Law and Procedure

§754 at 592 (R. Anderson 1957), and the offense was

defined as “the maintenance of premises upon which

activity occurred that either created a public disturb-

ance or, although concealed from the public, consti-

tuted a nuisance per se, such as a gambling house or

bawdy house.” Harris v. United States, 315 A.2d 569,

572 (D.C. Ct. App. 1974) (footnotes omitted). “‘The

rationale for this common-law rule rested upon the

potential in these ‘houses’ for breach of the peace that

is inherently present in numbers of persons frequenting

2At common law, a disorderly house was a public nuisance.

Pope v. Commonwealth, 131 Va. 776, 793, 109 S.E. 429, 435

(1921).

Tb

such places for unlawful purposes.” /d.; Wharton, op.

cit., §763 at 591.

Guided, therefore, by this settled common-law

definition of the crime as applied to the excised portion

of the ordinance, a person of ordinary intelligence can

readily understand that it is unlawful in Norfolk to

maintain a place where persons engage in activity which

either creates a public disturbance or, although hidden

from public view, constitutes a nuisance, per se.? By

the same token, arbitrary action by those persons who

must apply the terms of the offense, that is, police

officers, prosecutors, judges and jurors, is sufficiently

restricted by this well-settled common-law definition.

For example, any reasonably intelligent person would

know that repeated acts of oral sodomy, and

solicitation therefor, performed in a commercial estab-

lishment open to the public by undressed females,

constitutes a nuisance per se and, therefore, permitting

such conduct to take place is unlawful under this

ordinance. We conclude, therefore, that the excised

language of the ordinance, as thus construed, suffici-

ently defines the offense charged and that it withstands

the defendant’s constitutional attack. We further hold,

as previously stated, that the evidence was fully

sufficient to show that the activity conducted on the

3The term nuisance per se is restricted in its use “to such

things as are nuisances at all times and under all circumstances.”

Price v. Travis, 149 Va. 536, 547, 140 S.E. 644, 647 (1927). By

statute in Virginia, whoever maintains any building used for the

purpose of “lewdness, assignation or prostitution” is guilty of a

nuisance, and the building where such conduct is permitted is

declared a nuisance. Code §48-7.

8b

premises kept by defendant constituted a nuisance per

se.

The defendant, in his broadside attack on the entire

ordinance, takes the position that it punishes “disor-

derly conduct” and “disorderly persons.” He argues

that the vagueness of these terms invalidates the

ordinance. But the defendant has no standing to make

such a challenge in this case. As we have demonstrated,

he was not charged with either “disorderly conduct” or

as a “disorderly person.”” Even if those portions of the

ordinance are invalid, he is not affected because he was

convicted of keeping a disorderly house, and he will not

be permitted to attack its validity as applied to others

who may be prosecuted for disorderly conduct or as

disorderly persous. Wicks v. City of Charlottesville,

supra, 215 Va. at 277-78, 208 S.E.2d at 755. See

Parker v. Levy, supra, 417 U.S. at 755.

Finally, the defendant contends that the trial court

erred in refusing to grant his motions for a mistrial

after certain statements, which the defendant alleges

were inflammatory, were made by the prosecutor and

by a witness for the City. The attorney for the City,

during opening statement, said that the case involved

“one of the most infamous of the massage parlors” and

that it had “a reputation in the community as being a

legalized whorehouse.”” Sergeant C.J. Morgante of the

Norfolk Police Department, after testifying that the

massage parlor was ‘a whorehouse, a house of ill

repute, [and] an illegal house of prostitution,” stated

that “[i]t is a filthy place, [it] makes Granby Street

filthy, its [__], that is what one said to me.” In

overruling the motion for a mistrial made after the

preceding testimony, the trial judge stated that he was

not offended by the vulgarism.

9b

We reject the defendant’s contentions, even if we

assume that the statements were improper. This was a

bench trial and judges are suited by training and

experience to disregard potentially prejudicial com-

ments. See Akers v. Commonwealth, 216 Va. 40, 45,

216 S.E.2d 28, 31 (1975). We find no abuse of

discretion in the denial of a mistrial.

For these reasons, the conviction is

Affirmed.

Ic

APPENDIX C

IN THE

SUPREME COURT OF VIRGINIA

AT RICHMOND

ROBERT M. FLANNERY,

Plaintiff in error, : FILED

: SUPREME COURT OF

v. VIRGINIA

CITY OF NORFOLK, : November 6, 1975

Defendant in error.

RECORD NO. 75-0022

NOTICE OF APPEAL TO

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that the plaintiff in error,

Robert M. Flannery, hereby appeals to the Supreme

Court of the United States from the final order of the

Supreme Court of Virginia affirming the judgment of

conviction entered herein on October 10, 1975.

This appeal is taken pursuant to 28 U.S.C., Section

1257(2).

/s/Hunter W. Sims, Jr.

Hunter W. Sims, Jr., Esquire

Canoles, Mastracco, Martone, Barr & Russell

1710 Virginia National Bank Building

Norfolk, Virginia 23510

Date: November 5, 1975

2c

CERTIFICATE

I hereby certify that on this the Sth day of

November, 1975, a true copy of the foregoing was

mailed to Philip R. Trapani, City Attorney, 908 City

Hall Building, Norfolk, Virginia 23510, and Andrew P.

Miller, Attorney General, Supreme Court Building, 1101

E. Broad Street, Richmond, Virginia 23219, counsel for

defendant in error, and to Thomas W. Moss, Jr.,

Esquire, Moss & Moss, 830 Maritime Tower, Norfolk,

Virginia 23510, counsel for plaintiff in error.

/s/Hunter W. Sims, Jr.

Hunter W. Sims, Jr.