# Petition — Alabama v. McCrary

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 913

## Text

82-1976 rv eiLeR s

on. JUN 4 1983

_ | ALEXANDER L. STEVas,
IN THE SUPREME COURT OF THE CLERK
UNITED STATES

OCTOBER TERM, 1982
STATE OF ALABAMA,
Petitioner
V.
JOYCE GLASS McCRARY

Respondent

PETITION FOR A WRIT OF
CERTIORARI TO THE SUPREME COURT AND
COURT OF CRIMINAL APPEALS OF ALABAMA

OF
CHARLES A. GRADDICK
ATTORNEY GENERAL OF ALABAMA

JOSEPH G. L. MARSTON, III
ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL
250 Administrative Building
64 North Union Street
Montgomery, Alabama 36130
(205) 834-5150

ATTORNEYS FOR PETITIONER

NO.

IN THE SUPREME COURT OF THE
UNITED STATES
OCTOBER TERM, 1982
STATE OF ALABAMA,

Petitioner
V.
JOYCE GLASS McCRARY

Respondent

PETITION FOR A WRIT OF
CERTIORARI TO THE SUPREME COURT AND
COURT OF CRIMINAL APPEALS OF ALABAMA

OF
CHARLES A. GRADDICK
ATTORNEY GENERAL OF ALABAMA

JOSEPH G. L. MARSTON, III
ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL
250 Administrative Building
64 North Union Street
Montgomery, Alabama 36130
(205) 834-5150

ATTORNEYS FOR PETITIONER

QUESTIONS PRESENTED

l. Does a party to whom a statute
forbidding possession of counterfeit
drugs obviously applies have standing to
raise the statute's alleged unconstitu-
tional vagueness as to other persons?

2. Where a statute has been
judicially construed to require scienter,
does the fact that the statute's language
makes no express reference to scienter
render the statute unconstitutionally
vague?

3. Is a statute which has been
judicially construed as requiring
scienter, rendered unconstitutionally
vague by the fact that it does not
require a specific intent?

4. Is a clear and concise statute
rendered unconstitutionally vague by the
fact that it relates to a subject which a
certain court considers socially

harmless?

THE PARTIES

In the Circuit Court of Jackson
County, Alabama, the Court of Criminal
Appeals of Alabama and the Supreme Court
of Alabama, the parties were: The State
of Alabama, who is the Petitioner herein
and Joyce McCrary, who is Respondent
herein.

The matters at issue here were first
raised in the Circuit Court of Jackson
County, Alabama and have been at issue

throughout these proceedings.

IT

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ------------ ante, I
PARTIES ------------------------ ante, II
TABLE OF CASES ----------------- iii
TABLE OF CONSTITUTIONAL

PROVISIONS ---------------- vi
TABLE OF STATUTES --------------- vi
OPINIONS BELOW ------------------ l
JURISDICTION -------------------- 2
CONSTITUTIONAL PROVISIONS

INVOLVED -----------------~-- 2
STATUTORY PROVISIONS

INVOLVED ------------------- 3
STATEMENT OF THE CASE ----------- 4
STATEMENT OF THE FACTS ---------- 7
SUMMARY OF THE ARGUMENT --------- 10
ARGUMENT --------~---------.----- 12

I. ON STANDING

REASON FOR GRANTING

THE WRIT: CONFLICT

WITH THE CONTROLLING
DECISIONS OF THE

SUPREME COURT ------------ 16

TABLE OF CONTENTS (CON'T)

PAGE

II. THE STATE COURTS MIS-
APPLIED THE U.S. CON-
STITUTIONAL STANDARDS
FOR MEASURING VAGUENESS
IN STATUTES

REASON FOR GRANTING THE
WRIT: CONFLICT WITH

THE CONTROLLING

DECISIONS OF THE

SUPREME COURT ----------- 26

CONCLUSION -<<<<<--<<--------------- 36

CERTIFICATE OF SERVICE -<---------- 38

ii

TABLE OF CASES

PAGE

Blood Brothers Inc.
v. Alabama Alcoholic
Beverage Control Board,
386 So. 2d 220 (S.
Ct. Ala, 1980) ——————————— 21

Blood Brothers Inc. v.
Alabama Alcoholic
Beverage Control Board,
386 So. 2d 218
(Civ. App. Ala,
1979) --------------------- 21

Boyce Motor Lines v.
United States,
342 U.S. 337,
96 L.Ed. 367,
72 8. Ct. 329
(1951) -------------------- 34

California v. LaRue,
409 U.S. 109, 34
L. Ed. 2d 342, 93
S. Ct. 390 (1972) --------- 22

Day-bright Lighting,
Inc. v. Missouri,
342 U.S. 421, 96
L.Ed. 469, 72
S.Ct. 511 (1954) --<-------- 31

Esco v. State,
278 Ala. 641, 179
So. 2d 766 (1965) --------- 5,6,20-
22,24,29

iii

TABLE OF CASES (CON'T)

PAGE

Grayned v. Rockford,
408 U.S. 104, 33
L.Ed.2d 222, 97 S.
Ct. 2294 (1972) -o<e------- 31

Hoffman Estates v. Flipside,
U.S. , @i
L. Ed. 24 36z,. 102
S. Ct. (1982) ------------- 25,31,34

Kahally v. State,
254 Ala. 482, 48
So. 24 794 (1950) «<<------- 5,6,19-
22,24,29

Kolender v. Lawson,

51 U.S. L.
Wk. 4532 (1983) «<<<<<<---- 12,30,33

McCraney v. ay
ae
1 So. 2d 894. (1941) -<------ 32

McCrary v. State,
So. 2d
ts. See Ala. 1583) SS ee 1,7

McCrary v. State,
50. 2d
(Cr. App. ro goagg 1982) ae 1,5,10

Mobile v. Yuille,
3 Ala. 137 (1841) ---------- 32

iv

TABLE OF CASES (CON'T)

PAGE

New Orleans vy. Dukes,
427 U.S. 297, 49
L.Ed.2d 51l, 96
S.Ct. 2513 (1976) ---------- 13

New York v. Ferber,
U.S. » 32
L.Ed.2d 1113, 102
S.C. _—s (1982) one = 25

Penn Central Transportation
Co. v. New York,
438 U.S. 104,
57 L. Ed. 2d 631,
98 S. Ct. 2646 (1978) ------ 32

Robinson v. United States,
aye 324 U.S. 282, 89
L. Ed. 944, 65
S. Ct. 666
(1945) --------------------- 11,17,
19

Tyson v. Johns-Manville Corp.,
399 So. 2d 263,
(S.Ct. Ala., 1981) iain tint cael 32

United States v. National
Dairy Products Corp.,

. ’
9 L. Ed. 2d 561,
83 S. Ct. 594 (1963) ------- 18

TABLE OF CASES (CON'T)

PAGE

Walker v. State,
° 672
(S. Ct. Ala.,
1977) -ene nnn nnn nn nr ee 13

Winters v. New York,
. e 7
92 L. Ed. 840,
68 S. Ct. 665 (1948) ------- 28

Young v. American Mini Theatres,
427 U.S. 50, 49
L. Ed. 2d 310,
96 S. Ct. 2440
(1976) qqmm mmm nnn nee e ee -- === 24,31

TABLE OF CONSTITUTIONAL PROVISIONS

Constitution of the United
States,

Amendment Fourteen -------- 2-3,19

TABLE OF STATUTES

Code of Alabama, 1975

Title 20,
Section 20-2-2 ----------- 14,23
Section 20-2-70 ---------- 3,4,12,
14,28,
36-37
United States Code,
Title 28,
Section 1257 -<<-<--------- 2

vi

OPINIONS BELOW

The opinion of the Court of Criminal
Appeals of Alabama reversing Respondent
McCrary's conviction is not as yet
reported but will be reported as
follows:

McCrary v. State, So. 2d
(Cr. App. Ala., 1982)

A copy of the same is submitted in
Appendix "A" to this petition.

The orders of the Supreme Court of
Alabama granting and then quashing the
writ of certiorari in this case are not
as yet reported but will be reported as
follows:

Ex parte: State; In re:

McCrary v. State, So. 2d
(S. Ct. Ala., 1983)

A copy of the same is submitted in

Appendix "B" to this petition.

JURISDICTION

The order of the Supreme Court of
Alabama quashing the writ in this case
was issued on April 8, 1983, and this
petition is filed within sixty days of
that date.

The Jurisdiction of this Honorable
Court is invoked under 28 United States

Code, Section 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Court of Criminal Appeals of
Alabama found the statute under which
Respondent McCrary was convicted to be
repugnant to the Fourteenth Amendment to
the Constitution of the United States,
which reads as follows:

",..-All persons born or
naturalized in the United
States, and subject to the
jurisdiction thereof, are
citizens of the United States
and the State wherein they
reside. No State shall make or
enforce any law which shall

abridge the privileges or
immunities of citizens of the
United States; nor shall any
State deprive any person of
life, liberty, or property,
without due process of law; nor
deny any person within its
jurisdiction the equal
protection of the laws..."

STATUTORY PROVISIONS INVOLVED

At issue in this case is the
constitutionality of Title 20, Section
20-2-70, Code of Alabama, 1975, as
regards the possession of counterfeit
drugs. A copy of this statute is
submitted as Appendix "C" to this
petition. The particular portion of this
statute which the Alabama Courts found
unconstitutionally vague reads as
follows:

",..(b) Any person who violates

this section with respect to a

counterfeit substance

enumerated in schedules I

through V is guilty of a felony

and, upon conviction, for the

first offense may be imprisoned
for not less than two nor more

that 15 years and may be fined
not more than $25,000.00"
(Title 20, Section 20-2-70,
Code of Alabama, 1975;
Appendix "C")

STATEMENT OF THE CASE

Following her conviction for
possessing, selling, furnishing or giving
away counterfeit controlled substances, |
Respondent McCrary appealed to the Court
of Criminal Appeals of Alabama. (R. pp.
70-71; 89 and 90)

On August 24, 1982, the Honorable
Court of Criminal Appeals of Alabama
reversed Respondent McCrary's conviction
on the grounds that the statute under
which she was convicted is allegedly
unconstitutionally vague. As to
Respondent McCrary's standing to raise
vagueness in light of the statute's

obvious

lfitle 20, Section 20-2-70(b), Code of
Alabama, 1975; Appendix "C".

4

application to her, the Court followed
several old Alabama Supreme Court
opinions? allowing any defendant to raise
a claim of vagueness without regard to
the facts of his or her own case. The
Court's finding of vagueness was based
not on the statute's language but on
considerations involving social harm,

scienter and specific intent. McCrary v.

State, So. 2d ___—sqOi[Cr. App. Ala.,
1982]; Appendix “A").

The State's application for
rehearing raising substantially the same
points raised here was overruled on
October 12, 1982. (Appendix "A", p. 27)

The State petitioned the Supreme
Court of Alabama for a writ of certiorari
raising these same points and expressly

asking the Alabama Supreme Court to

2xahally v. State, 254 Ala. 482, 48 So.
2d 794 (1950); Esco v. State, 278 Ala.
641, 179 So. 2a 7

5

overrule its earlier opinions on standing
to raise vagueness, so as to bring the
law of Alabama into conformity with the
teachings of this Honorable Court.3

On January 4, 1983, the Alabama

Supreme Court found probable merit in the

3Ground 8 of the State's petition in the
Alabama Supreme Court read as follows:

"...8. The Honorable Court of
Criminal Appeals reached its
decision in reliance on this
Honorable Court's decisions and
opinions in Kahally v. State,
(254 Ala. 482, O.

[1950]) and Esco v. State, (278
Ala. 641, 17 O.

{1965]), and the State is
seeking to have these cases
overruled to the extent that
they authorize persons to whom
a statute clearly applies to
raise questions of vagueness as
to the statute's application to
others...."

In its supportive brief the State argued
that Kahally and Esco were contrary to
the decisions and opinions of the United
States Supreme Court.

petition and granted the writ.
Respondent McCrary declined to file a
brief, and the case was submitted on
January 3l, 1983. However on April 8,
1983, the Alabama Supreme Court quashed
the writ "...as improvidently

granted...." without opinion. (Ex parte:

State; In re: McCrary v. State, So.
2d {S. Ct. Ala., 1983]; Appendix
"B® )

STATEMENT OF THE FACTS

The Petition is based on the
following facts, as found by the Court of
Criminal Appeals of Alabama:

"The State's evidence

proved that two Scottsboro

police officers, armed with a

search warrant, went to

appellant's [i.e. Respondent

McCrary's] residence, showed

her the warrant, and told her

they were authorized to search
7

for Quaaludes or methaqualone.
Upon reading the warrant,
appellant replied, ‘All that's
here are those old fake pills,'
and ‘That's those old pills I
have in the back room," or
words to that effect. The
appellant then brought out a
bottle containing 415 white
pills stamped “LEMMON 714” and
scored on the back.

"One of the officers
familiar with the appearance of
Quaaludes testified that the
pilis looked exactly like those
containing the controlled
substance to him. A
preliminary analysis of the

pills at Scottsboro police

headquarters, however,

indicated they did not contain
the controlled substance
methaqualone. The toxicolo-
gist's analysis, and later
testimony, confirmed the
finding that the capsules did
not contain methaqualone or any
other controlled substances,
but compounds resembling
aspirin and antihistamine.

"An official of the Lemmon
Corporation testified that his
company manfactured a drug
containing methaqulaone, under
the trade name ‘Quaalude.' The
pill is stamped ‘LEMMON 714'
and scored on the reverse side.
He testified that the pills
found at appellant's residence
were not manufactured by his

company although they were ‘a

Oe ee ee

very good imitation.' He also
stated that Lemmon had not
authorized anyone to make a
facsimile Quaalude...."
(McCrary v. State, __— So.._ 2d
___. [Cr. App. Ala., 1982];

Appendix "A", pp. 1-3)

SUMMARY OF THE ARGUMENT

The statute is clear and unambiguous
on its face. The Alabama Courts ruled
the statute vague on the basis of matters
which are irrelevant to vagueness.
Respondent McCrary was allowed to raise
vagueness even though the statute
obviously applied to her. In all of this
the Alabama Courts ruled contrary to the
policies, decisions and opinions of this
Honorable Court.

I. This Honorable Court has a well

established policy that: Except in the

10

area of expression a statute will not be
struck down for vagueness on the basis of
",...-hypothetical cases which may never

arise...." Robinson v. United States,

324 U.S. 282, 286, 89 L. Ed. 944, 947, 65
S. Ct. 666 (1945) The Alabama Courts
have nearly the opposite policy: Except
in one area, which happens to involve
expression, statutes will be tested for
vagueness against any conceivable
hypothetical case.

The writ should issue to resolve this
conflict.

II. In declaring this statute
unconstitutionally vague, the State
Courts ruled contrary to all of those
decisions of this Honorable Court on what
constitutes vagueness in a statute. In
relating vagueness to "social harm" as

measured by a given court, the Alabama

ll

Courts established a rule which defeats
"...the most important aspect of the

vagueness doctrine...." Kolender v.

Lawson, U.S. - L. Ed. 2d

’ Ss. Ct. Y 51 U.S. L. Wk.

4532, 4534 (1983) The ilabama Courts
also ruled contrary to the decisions of
this Honorable Court on:

1. The right of the legislative
branch to determine social harm.

2. The need to consider judicial
construction in reviewing a statute for
alleged vagueness.

3. The relationship of scienter and

specific intent to vagueness.

ARGUMENT
Title 20, Section 20-2-70, Code of
Alabama, 1975, (Appendix "C") provides in

pertinent part:

12

",..(a) Except as authorized
by this chapter, any person who
possesses, sells, furnishes,
gives away, obtains or attempts
to obtain by fraud, deceit,
misrepresentation or subterfuge
or by the forgery or alteration
of a prescription or written
order or by the concealment of
material fact or by use of
false name or giving a false
address controlled substances
enumerated in schedules I, II,
III, IV and V is guilty of a
felony...." (Appendix "C")

The expressions "possesses", "sells",
"furnishes", “gives away", etc. are not
terms of art, but are common expressions
which are used in their common meanings.
These expressions are precise. Although
the statute does not use the word
"knowingly" or other words referring to
scienter, the Alabama Supreme Court has
construed the statute as requiring

knowledge. Walker v. State, 356 So. 2d

672 (S. Ct. Ala., 1977) Thus, the

statute as construed reads: "...any

13

person who [Knowingly] possesses, sells,

etc...." No one could read this statute

and fail to know exactly what conduct the
statute is outlawing.

Respondent McCrary was not convicted
under subsection "a" of this statute but
under subsection "b", which reads, in
pertinent part:

"..-(b) Any person who violates

this section with respect to a

counterfeit substance

enumerated in schedules I

through V is guilty of a

felony...." (Appendix "C")

Thus all of the requirements of

subsection "a" above, including scienter,

are incorporated by reference into
subsection "b". “Counterfeit substance"
would appear to be a self-defining
expression but is, nonetheless, defined

as follows:

"...-(6) COUNTERFEIT SUBSTANCE.
Substances which, or the
container or labeling of which,
without authorization, bears

the trademark, trade name or
other identifying mark,
imprint, number or device or
any likeness thereof of a
manufacturer, distributor or
dispenser other than the person
who in fact manufactured,
distributed or dispensed the
substance. (Title 20, Section
20-2-2, Code of Alabama, 1975;
Appendix "C")

The Alabama Court of Criminal

Appeals held that this statute was
unconstitutionally vague as applied to
possession of counterfeit substances,
because the statute as drafted does not

expressly require scienter, because the

statute does not require specific intent,
and because possession of counterfeit
controiled substances is allegedly not
socially harmful. The Court allowed
Respondent McCrary to raise vagueness
even though, under the unconflicting
evidence, the statute clearly applied to
her. In so ruling the Alabama Courts
ruled contrary to numerous decisions of

this Honorable Court.

15

I.
ON STANDING

REASON FOR GRANTING THE WRIT:

CONFLICT WITH PRIOR DECISIONS

OF THE SUPREME COURT.

A law is essentially an idea but to
have any practical effect that idea must
be communicated by the means of words.
Ideas are abstract, while words are
material and concrete. No matter how
carefully language is framed, it never
precisely covers the idea. This is the
key problem in statutory drafting: How
to express the legislature's intent,
covering the subjects of legislative
concern, without extending beyond the
limits of those concerns. At the same
time, a statute must be worded with
sufficient prescision to inform
individuals and the Courts of what is

required or forbidden. If each statute

had to meet all of these requirements

perfectly on its face, legislation would
be a practical impossibility. However,
statutes need not meet each of these
requirements on their face. If a statute
clearly defines the forbidden or mandated
conduct, many questions about the
statute's applicability to unusual or
unanticipated situations can be left to
the commonsense and good will of the
executive and judicial branches of the
government. It is in this context that
this Honorable Court has established the
principle that, except in the area of
expression, the alleged vagueness of a
statute will not be tested in the
abstract but only as applicable to a

particular case. Robinson v. United

States,4 324 U.S. 282, 89 L. Ed. 2d 944,

4"...1It is for Congress and not for us to
decide whether it is wise public policy
to inflict the death penalty at all. We
(con't)

17

65 S. Ct. 666 (1945); United States v.

National Dairy Products Corp.°, 372 U.S.

29, 9 Le. Ed. 2d 561, 83 S. Ct. 594
(1963)

Now, Alabama has for many years
tested statutes for vagueness against

",..-hypothetical cases which may never

footnote 4 con't

do not know what provision of law,
Constitutional or statutory, gives us
power wholly to nullify the clearly
expressed purpose of Congress to
authorize the death penalty because of a
doubt as to the precise congressional
purpose in regard to hypothetical cases
that may never arise...." (324 U.S. 282,
286, 89 L. Ed. 944, 947)

5",..Void for vagueness simply means that
criminal responsibility should not attach
where one could not reasonably understand
that his contemplated conduct is
proscribed. United States v. Harriss,
347 U.S. 612, 617, 98 L. ed. 989, 996, 74
S. Ct. 808 (1954). In determining the
sufficiency of the notice a statute must
of necessity be examined in the light of
the conduct with which a defendant is
charged...." (372 U.S. 29, 32-33, 9 L.
Ed. 561, 565-566)

18

i laa

arise...." Robinson, above. In Kahalley

v. State, (254 Ala. 482, 48 So. 2d 794

[1950]), the Alabama Supreme Court
condemned as vague and "...repugnant to
the Fourteenth Amendment [to] the U.S.
Constitution....” (485 So. 2d 794, 796),
a statute outlawing “unlawful peeping.”
The court observed that, "...undoubtedly,
---e(the statute]...was intended to serve
a useful purpose and bring to justice
so-called ‘Peeping Toms'...." (485 So.
2d 794, 795), but then the Court went to
great lengths to list numerous "innocent
situations" which were possibly covered
by the statute's language. The Court
never states what Kahalley himself did,
and it did not seem to matter, since
there were so many "innocent"
hypothetical cases to which the statute
could have applied. On a similar

analysis a statute outlawing changing

19

one's name to conceal identity was struck

down in Esco v. State, (278 Ala. 641, 179

So. 2d 766 [1965]). Again, the Court
struck down the statute with a lengthy
examination of hypothetical applications
of the statute but no hint as to Esco's
own conduct. The Alabama Supreme Court
ruled that the statute was
",..-unconstitutional as to deny the
requirements of due process under the
doctrine of Kahalley...." Esco, 179 So.
24 766, 771.6 ‘These cases are in patent
conflict with this Honorable Court's
policy on standing to raise the alleged
vagueness of a statute, but the conflict

does not stop there.

6All of the Alabama cases in this area
demonstrate a confusion of vagueness and
overbreadth.

20

In 1979 the Court of Civil Appeals
of Alabama struck down as unconstitu-
tionally vague a liquor regulation, which
disallowed "...topless or bottomless

dancers or performers...." Blood

Brothers Inc. v. Alabama Alcoholic

Beverage Control Board, 386 So. 2d 218

(Civ. App. Ala. 1979) However, the
Alabama Supreme Court reversed holding
that, since the regulation clearly barred
the activity at the lounge in question,
Blood Brothers had no standing to raise

the vagueness issue. Blood Brothers Inc.

v. Alabama Alcoholic Beverage Control

Board, 386 So. 2d 220 (S. Ct. Ala., 1980)
Although neither Court mentioned Kahalley
or Esco, there was a strong suggestion
that those cases had been superceded.
Such a suggestion can not survive the
instant case. Here the Court of Criminal

Appeals of Alabama relied on Kahalley and

21

Esco to give Respondent McCrary standing
to raise the question of the alleged
vagueness of this statute. The fact the
Alabama Supreme Court first granted
review and then quashed the writ,
demonstrates that Kahalley and Esco are
still the law except in the area of nude
cabaret performances. Such performances,
of course, involve expression.’
Therefore, the Alabama rule on standing
to raise questions of the alleged
vagueness of a statute is:

"Except in a certain area which

involves expression, the

alleged vagueness of a statute
as to any hypothetical

7",,.While we agree that at least some of
the performances to which these
regulations address themselves are within
the limits of the constitutional
protection of freedom of expression...."
California v. LaRue, 409 U.S. 109, 119,

34 L. Ed. 2d 342, 352, 93 S. Ct. 390
(1972)

22

application may be raised by
anyone."

This is nearly the opposite of the rule
long followed by this Honorable Court.
In the instant case Respondent
McCrary was in possession of 415 pills
which were stamped “Lemmon 714." A
police officer familiar with the
quaaludes manufactured by the Lemmon
Company testified that they looked
exactly like the genuine article. An
official of the company testified that
the pills were "a very good imitation."
These pills were perfect examples of
counterfeit substances as defined by the
statute. Title 20, Section 20-2-2(6),
Code of Alabama, 1975; Appendix "C". At
the time she was served with the search
warrant Respondent McCrary made an
unsolicited volunteered statement

acknowledging her possession of "fake

23

pills." Obviously, the statute applied
to Respondent McCrary. Yet the State
Court of Appeals following Kahalley and
Esco allowed her to raise a claim of
vagueness.

The long standing policy of this
Honorable Court is against examining
allegations of vagueness against
",.e-hypothetical cases which may never
arise...." See footnote 4, page 18. In

Young v. American Mini Theatres (427 U.S.

50, 49 L. Ed. 2d 310, 96 S. Ct. 2440
{[1976]) this Honorable Court rejected a
vagueness claim with these words:

",..-[E]ven if there may be some
uncertainty about the effect of
the ordinances on other
litigants, they are
unquestionably applicable to
these respondents...To the
extent that their challenge is
predicated on inadequate notice
resulting in a denial of
procedural due process under
the Fourteenth Amendment, it
must be rejected...." (427
U.S. 50, 58-59, 49 L.Ed. 2d 310,
319)

24

See also Hoffman Estates v. Flipside,

__.__ *UeS. se, 71 ~*‘L. Ed. 2d 362, 102 S.
Ct. (1982) This policy is consistent with
this Court's broader policy on standing
to raise constitutional questions. This

policy was restated only last year in

New York v. Ferber, ( 0.8. e 73

L.Ed.2d 1113, 102 S.C. {[1982]. There
your Honors wrote:

" . . . The traditional rule is
that a person to whom a statute
may constitutionally be applied
may not challenge that statute
on the ground that it may
conceivably be applied uncon-
stitutionally to others in
situations not before the
Court. . .” (73 L.Ed.2d 1113,
1129).

Since the long standing rule
followed in Alabama on standing to raise
vagueness under the Fourteenth Amendment
is in complete conflict with the rule of
this Honorable Court, the writ should

issue so that the United States

25

Constitution will be properly applied in
Alabama.
Il.
THE STATE COURTS MISAPPLIED THE
U.S. CONSTITUTIONAL STANDARDS

FOR MEASURING VAGUENESS IN
STATUTES

REASON FOR GRANTING THE WRIT:
CONFLICT WITH THE CONTROLLING
DECISIONS OF THE SUPREME COURT

That the mischief of the Alabama
rule on vagueness goes beyond standing to
matters of substance is clearly
demonstrated by this case. The Alabama
Court of Criminal Appeals correctly
stated the vaguenss doctrine of this
Honorable Court:

"The doctrine of vagueness...
originates in the due process
clause of the Fourteenth
Amendment, see Lanzetta v. New
Jersey, 306 U.S. 451, 59 S.Ct.
618, 83 L.Ed. 888 (1939), and
is the basis for striking down
legislation which contains
insufficient warning of what
conduct is unlawful, see United
States v. National Dairy

26

Products Corporation, 372 U.S.
29, 83 S.Ct. 594, 9 L.~Ed.2d 561
(1963)

"Void for vagueness simply
means that criminal
responsibility should not
attach where one could not
reasonably understand that his
contemplated conduct is
proscribed. United States v.
Harriss, 347 U.S. 612, 617, 74
S.Ct. 808, 98 L.Ed. 989, 996
(1954). A vague statute does
not give adequate notice of the
required conduct to one who
would avoid its penaities,
Boyce Motor Lines v. United
States, 342 U.S. 337, 340, 72
S.Ct. 329, 330, 96 L.Ed. 367,
371 (1951), is not sufficiently
focused to forewarn of both its
reach and coverage, United
States v. National Dairy
Products Corporation, 3/2 U.S.
at 33, 63 S.Ct. at 598, 9
L.Ed.2d at 566, and may trap
the innocent by not providing
fair warning, Grayned v. Cit

of Rockford, 408 er S. 104, Ios,
92 S.Ct. 2294, 33 L.Ed.2d 222,
227-28 (1972).

"As the United States Supreme
Court observed in Winters v.
New York, 333 U.S. 507, 68
S.Ct. 665, 92 L.Ed. 840
(1948):

27

‘There must be ascertain-
able standards of guilt.
Men of common intelli-
gence cannot be required
to guess at the meaning
of the enactment. The
vagueness may be from
uncertainty in regard to
persons within the scope
of the act, or in regard
to the applicable tests
to ascertain guilt.'

670, 92 L.Ed.2d at 849-50
(citations omitted).... "(McCrary

v. State, So. 2d (Cr.
App. Ala., 1982] Appendix A,
pp. 9-11)

Had the Court of Appeals followed these
principles, the State of Alabama would
not be burdening this Honorable Court
with this petition. Manifestly Title 20,

Section 20-2-70(b), Code of Alabama,

1975, contains clear notice of what is
forbidden and a clear standard of guilt.
However, the Court of Criminal Appeals
did not apply the principles of this
Honorable Court but shifted from Winters

v. New York, with its concern for

28

"ascertainable standards of guilt" to

Kahalley v. State, (254 Ala. 482, 48 So.

2d 794 [1950]) and Esco v. State, (278

Ala. 641, 179 So. 2d 766 [1965]), with
their long listings of “hypothetical
cases which may never arise." Although
the Court of Criminal Appeals could not
think of any innocent uses for
counterfeit controlled substances (who
could?), it applied these cases thusly:

Similarly, § 20-2-70(b) "marks
no line between lawfulness and
criminality," Kahalley v.
State, supra. It proscribes
the possession of a substance
which, by its nature, is
essentially harmless. [8] aA
"counterfeit substance" becomes
injurious to the public health,
safety or welfare only with the
addition of a specific intent

8Although the social harm of counterfeit
drugs would appear to be obvious, the
State of Alabama filed in the Alabama
Supreme Court an appendix to its brief
reproducing eight learned articles,
totaling some 34 pages, on the social
harm of counterfeit drugs.

29

on the part of its possessor to

pass it off or to represent it

as genuine.... (Appendix "A",

p. 14)
Thus, in the Court of Criminal Appeal's
view, vagueness becomes a function of
social harm. And, since social harm is
largely a matter of opinion,? vagueness
no longer relates to notice nor the
standard of guilt but addresses itself to
the social values of a given court. This
is an interesting development, since one
of the reasons!9 for the policy against
vagueness in statutes is that:

",..A vague law impermissibly

delegates basic policy matters

to policemen, Judges, and

Juries for resolution on an ad
hoc and subjective basis, with

90f course, many people consider genuine
controlled substances to be socially
harmless.

10In fact this reason now appears to be
",...-the more important aspect of the
vagueness doctrine...." Kolender v.
Lawson, U.S. ’ ~Ed.

’ S.Ct. » 51 U.S. Le Wk.
4532, F534 (1983)

30

the attendant dangers of
arbitrary and discriminatory
applications...." (Hoffman
Estates v. Flipside, U.S.

, 71 UeEd. 2d 3602, 371, 102
i [1982]; quoting from
Grayned v. Rockford, 408 U.S.
104, 108, 33 L.Ed.2d 222,
227-228, 92 S. Ct. 2294 [1972])
(Emphasis supplied)

Thus, the Alabama Courts have come up
with a rule which not only does not
follow the policy of this Honorable Court
but which actually produces the result
that this Court's policy is designed to
prevent. Social harm addresses itself

to legislative not judicial discretion.

Day-bright Lighting, Inc. v. Missouri,

342 U.S. 421, 423, 96 L.~Ed. 469, 472, 72

S.Ct. 511 (1954); New Orleans v. Dukes,

427 U.S. 297, 302, 49 L.Ed.2d 511, 517,

96 S.Ct. 2513 (1976); Young v. American

Mini Theaters, Inc., 427 U.S. 50, 49

L.Ed.2d 310, 96 S.Ct. 2440 (1976); Penn

Central Transportation Co. v. New York,

438 U.S. 104, 57 L.Ed. 2d 631, 98 S.Ct.

31

2646 (1978). This is also the law of

Alabama. Mobile v. Yuille, 3 Ala. 137

(1841); McCraney v. Leeds, 241 Ala. 198,

1 So. 2d 894 (1941); Tyson v. Johns-

Manville Corp., 399 So. 2d 263, 271 (S.

Ct. Ala., 1981).

The Alabama Courts also misapplied
this Honorable Court's teachings on
scienter requirements as they relate to
vagueness.

First, the Court of Criminal Appeals
recognized that the statute had been
judicially construed as requiring

scienter.11 then the Court concluded

ll#,,.In Walker v. State, [356 So.2d 672
(S.Ct. Ala., 1977)], supra, the Alabama
Supreme Court recognized the State's
authority under the police power 'to
impose strict liability in connection
with a variety of regulatory statutes for
what are commonly called “public welfare
offenses,"' 356 So. 2d at 673, but it
held that the Alabama Controlled
Substances Act was no one of those
statutes...." (Appendix "A", pp. 15-16)

32

that the fact that the statute did not

expressly require scienter rendered the

statute unconstitutionally vague.!2 This
is in irreconcilable conflict with the
Constitutional policy set by this
Honorable Court of testing statutes for
vagueness in light of authoritative
judicial construction. This policy is

seen most recently in Kolender v. Lawson,

( U.S. ’ L.Ed.2d ,

S.Ct. _—, 51 U.S. Le. Wk. 4532, 4533
{[1983]), where a challenged California
statute was tested in light of State
Court interpretation.

The Alabama Court of Criminal
Appeals then confuses scienter and

specific intent and concludes that both

12", ..Because the Alabama statute sets
out no scienter requirement, it fails to
give fair warning to someone in
appellant's position of the type of
conduct which will be considered
criminal...." (Appendix "A", p. 19 )

33

are necessary to avoid vagueness under
the Federal Constitution.13 This
Honorable Court has often upheld statutes
which contain somewhat vague expressions,
such as “unreasonable” or "marketed for
use", on the grounds that the statute
required that the action be willfull,

intentional or knowing. E.g. Boyce Motor

Lines v. United States, 342 U.S. 337, 96

L.Ed. 367, 72 S.Ct. 329 (1951); Hoffman

Estates v. Flipside, U.S. , 71

L.Ed.2d 362, 102 S.Ct. (1982).
However, this Honorable court has never

suggested that a statute which on its

13*,..We note that the recent holding of
the United States Supreme Court in
Village of Hoffman Estates v. Flipside,

Hoffman Estates, inc., | U.S. ‘

supra, though not based on a criminal
statute, supports our conclusion that
specific intent is a necessary ingredient
for fair warning in a criminal
provision...." (Appendix “A", pp. 20-21)

34

face clearly gives notice of the outlawed
conduct, precisely sets the standard of
guilt and has been authoritatively
construed as requiring scienter is vague
because it does not also require specific
intent.

It is apparent that the decision and
opinion of the Court of Criminal Appeals
of Alabama and the earlier Alabama cases
on which it is based are in patent
conflict with the decisions and policies
of this Honorable court and for this
reason the writ should issue so that the
law of Alabama can be brought into
conformity with the Constitution of the

United States.

35

CONCLUSION

In conclusion, the Petitioner, the
State of Alabama, respectfully submits
that the decisions and opinions of the
Honorable Court of Criminal Appeals and
Supreme Court of Alabama in this case
present conflicts with the prior
decisions and opinions of this Honorable
Court on numerous different points of
U.S. Constitutional law. For this reason
the Petitioner prays that this Honorable
Court will issue the writ of certiorari
and review the decisions and opinion of
the Honorable Courts of Alabama and on
such review will reverse the decisions of

said Courts holding Title 20, Section

36

20-2-70(b), Code of Alabama, 1975
(Appendix "C") unconstitutionally vague
and reversing the conviction of
Respondent McCrary.

Respectfully submitted,

CHARLES A. GRADDICK
ATTORVEY GENERAL

JOSEPH G. L. MARSTON, III
ASSISTANT ATTORNEY GENERAL

37

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, III, an
Assistant Attorney General of Alabama, a
member of the Bar of the Supreme Court of
the United States and one of the
Attorneys for the State of Alabama,
Petitioner, do hereby certify that on
this day of June, 1983, I did
serve the requisite number of copies of
the foregoing on the Attorneys for Joyce
Glass McCrary, Respondent, by mailing
same to them, first class postage prepaid
and addressed as follows:

Hon. J. Louis Wilkinson

Attorney at Law

617 Frank Nelson Building
Birmingham, Alabama 35203

38

Hon. J. Stephen Salter
Groenendyke & Salter
Attorneys at Law

Suite 500, Title Building
Birmingham, Alabama 35203

JOSEPH G. L. MARSTON, III
ASSISTANT ATTORNEY GENERAL

ADDRESS OF COUNSEL:

Office of the Attorney General
250 Administrative Building

64 North Union Street
Montgomery, Alabama 31630
(205) 834-5150

39

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1071%3A1. Public record. Not legal advice.