# Jurisdictional Statement — Flannery v. City of Norfolk

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1976
- **Citation:** 424 U.S. 936

## Text

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 _

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1547%3A1. Public record. Not legal advice.