Unconstitutional Vagueness

Here, from more rooting around in my old appeals, is a discussion of vagueness:

A. The Law

"At common law, it was the practice of courts to refuse to enforce legislative acts deemed too uncertain to be applied. A similar approach was taken by the United States Supreme Court in some early cases where the separation of powers doctrine was invoked to support the proposition that Congress, by the enactment of an ambiguous statute, could not pass the law-making job on to the judiciary. The Court has also reversed convictions under uncertain criminal laws on the basis that the accused was denied his right to be informed 'of the nature and cause of the accusation’ as guaranteed by the Sixth Amendment. However, today it is the void-for-vagueness doctrine which prevails: the due process clause[] of . . . the Fourteenth Amendment (when a state statute is involved) require[s] that a criminal statute be declared void when it is so vague that ‘men of common intelligence must necessarily guess at its meaning and differ as to its application.'" LaFave-Scott, Substantive Criminal Law § 2.3, 126 (1986)(multiple citations omitted).

The constitutional application of the vagueness doctrine to statutes which do not trigger First Amendment concerns considers two factors: (1) fair warning and (2) arbitrary and discriminatory enforcement. "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939).

1. Fair Warning

The Federal Supreme Court has stated that "[t]he constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964). However, the Court has treated this mainly as an aspirational statement allowing interpretations and limitations imposed by State appellate courts to bring unacceptably vague penal statutes back within constitutional limitations. Id. As well, "[w]ords of a statute . . . may [also] be considered sufficiently definite because they have a well-settled meaning in the common law, or because of their usage in other legislation." Lafave at 128 (citations omitted). It has been suggested that fair warning actually means fair warning that one needs an attorney to interpret the statute. Id. at 129.

2. Arbitrary and Discriminatory Enforcement

The Federal Supreme Court has stated "that the more important aspect of vagueness doctrine is not actual notice, but the other principal element of the doctrine--the requirement that a legislature establish minimal guidelines to govern law enforcement. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections." Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)(internal citations omitted). A statute is "unconstitutionally vague on its face [if] it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute." Id. at 361.