Refusing to Recognize Morales

Commonwealth v. Hicks
Yet again, the Supreme Court of Virginia has refused to follow the unconstitutional vagueness test laid out as precedent in Chicago v. Morales, which considers the question of whether a statute violates due process through vagueness although the person questioning the statute is not effected by it in an unconstitutional manner. The Court holds fast to its basically undefendable position that a Defendant must prove that the vagueness of a statute as applied to the Defendant is unconstitutional. As far as standards go it's clear, logical, and completely at odds with the standard set forth by the U.S. Supreme Court in Morales.

Citations
The VaSCt strives mightily to support its position, harkening back to pre-Morales U.S. SCt decisions from 20 and 30 years back and then citing a ton of inferior court decisions. Generally, this is a sign that the persuader has difficulty finding actual proof of his point; if there is a pertinent opinion squarely on point which is post-contradictory precedent one only needs to make that cite to prove his point. The more cites, the less credible the counter-precedent argument.

Citing a Non-Precedent Section of Morales
Then the Court goes to Section IV of Morales to set up a strawman to knock down ("For it is clear that . . ."). The only problem is that Section IV is explicitly not the opinion of the U.S. SCt:

Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which Souter and Ginsburg, JJ., joined.

The six Justice majority in Section V of Morales sets out the entire test for vagueness: (1) Is a substantial amount of innocent conduct reached, and if so (2) does it "necessarily entrust[] lawmaking to the moment-to-moment judgment of the policeman on his beat?" Six Justices apply this test with no exception if the statute can be constitutionally applied to the Defendant.

Claiming the Cases are Different

Morales City ordinance forbids gang members loitering in a public place with others. Officers can order any group with suspected gang members to disperse. Police arrest those who refuse to leave. Police actually set out policy to narrow the scope of citizens they may approach.

This Case The City, a State actor, manipulates the system, declaring a part of the City "private" and deeding this public City property to another State actor. The second State actor then increases police power giving them carte blanche to ban at will people from the streets and sidewalks if they cannot prove residence, employment, or demonstrate a legitimate business or social purpose for being on those streets or sidewalks. Police arrest those who refuse to leave or return at any time after being banned. No evidence of any police policy narrowing the scope of citizens who may potentially be approached.

The Court tries to say that the difference between the two is that Morales is a criminal ordinance while in Richmond it's only a policy and the crime is in the trespassing, which is not a vague statute.

[U]nlike the ordinance in Morales, the Housing Authority's trespass policy is not a penal ordinance. The Housing Authority's policy is intended to regulate the behavior of people who appear on private property owned by the
Housing Authority

Of course, one of the strongest arguments in favor of Morales mirrored this argument: the ordinance is not penal in nature until the person does not disperse. In Morales the problem wasn't in the arresting of a person refusing to obey a putatively valid order to leave an area; the constitutional problem is in the approach and banning of a person from an area without any evidence of illegal behavior. In the Richmond case the problem really isn't in the trespass charge; the constitutional problem is in the approach and banning of a person from an area without any evidence of illegal behavior.

De Jure v. De Facto
The last peg which the Court has any real chance of hanging its hat on is the public/private distinction. Morales was about streets which were public under the law. In the Richmond case a carefully constructed fiction has been set in place, making the roads and sidewalks technically private. They are still run by a State actor and presumptively, any necessary funds - beyond rent paid - which will be needed to maintain these roads and sidewalks will come from the State. It is a paper thin fabrication meant to give police more powers than they have constitutionally. It shouldn't stand but it is the strongest argument.


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As always, I am shooting from the hip here. Do not consider this competent legal advice. While I think the general arguments are on track, much, much more research would have to go into this before I would feel comfortable submitting it to any court.