When is a Law Unconstitutionally Vague?

A person has to know whether his conduct is legal or illegal so that he makes choice to follow the law or violate the law.  A law that does not give a person that choice is unconstitutional.  Various terms define unconstitutional laws that fail to give notice.  They can be found void for vagueness or they may violate due process or fail to give fair notice.  A lawyer can spend pages writing about what laws are unconstitutionally vague but here are some of the key points.

The basic California law on constitutional vagueness is contained in Walker v. Superior Court (1988) 47 Cal.3d 112, 141 and People v. Mirmirani (1981) 30 Cal.3d 375, 382. Mirmirani states:
“The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law.” ... [A] statute which either forbids, or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application, violates the first essential of due process of law.” [Citations] (People v. Miramirani, 30 Cal.3d at p. 382)

Similarly, in Walker, the court pointed out:

“Among the implications of this constitutional command [of due process of law] is that the state must give its citizenry fair notice of potentially criminal conduct. This requirement has two components: ‘due process requires a statute to be definite.enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.’ [Citations]”
(Walker, at 47 Cal.3d. at p. 141)
 

Only a federal level  vagueness claims are frequently analyzed in written opinions.  For example, in one case an ordinance making it a criminal offense for three or more persons to assemble on a sidewalk and conduct themselves in a manner annoying to people walking by was found impermissibly vague and void on its face because it encroached on the freedom of assembly. Coates v. City of Cincinnati, 402 U.S. 611 (1971).  Other cases like Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) also protect the freedom to assemble and in that case a conviction under statute imposing penalty for failure to “move on” voided); Bouie v. City of Columbia, 378 U.S. 347 (1964) threw out a conviction for trespass when people conducted a protest (sit in) at a drugstore lunch counter.  The statute was not well written and it did not give fair notice that it was a crime to refuse to leave private premises after being requested to do so.   

Daniel Horowitz is a criminal defense lawyer who is expert in defending the difficult and complex criminal cases. He has been a legal commentator for the Scott Peterson and many other trials, a law school professor and lecturer on legal topics.