(dissenting) — I dissent.
By this appeal we are asked to declare that RCW 9.87.010(7) is unconstitutionally vague and overbroad. A similar plea was rejected 30 years ago in State v. Harlowe, 174 Wash. 227, 24 P.2d 601 (1933). In 1971, the Washington Supreme Court again considered a vagueness and over-breadth challenge to the statute. Concerning the Harlowe decision the court said:
In State v. Harlowe, 174 Wash. 227, 24 P.2d 601 (1933), we considered RCW 9.87.010(7), recognized the common and ordinary meaning of the terms employed 'and held that the provision was not vague and uncertain. Since that time, we have further considered and somewhat limited or narrowed the meaning of the word “disorderly” as used in the context of the provision. In these later decisions we have held that the word, in its context, connotes overt misconduct contrary to the rules of good order and behavior, which is violative of the public peace. Seattle v. Franklin, 191 Wash. 297, 70 P.2d 1049 (1937); State v. Finrow, 66 Wn.2d 818, 405 P.2d 600 (1985); State v. Levin, 67 Wn.2d 988, 410 P.2d 901 (1966). As so construed and applied we can perceive no fatal vagueness.
(Italics mine.) State v. Maloney, 78 Wn.2d 922, 924, 481 P.2d 1 (1971).
A review of the record convinced the court that there was no evidence that Maloney’s conduct was “blatant, vociferous, or belligerent” (State v. Maloney, supra at 925) *10and concluded that his behavior could not “fairly or properly be characterized as overt misconduct violative of the public peace within the contemplation of RCW 9.87.010 (7).” State v. Maloney, supra at 926.
It is impossible for me to see how nonviolent, voluntary conduct between two adults, which the public at large is not free to witness because it occurs behind closed doors, can violate the public peace. Thus to affirm Ms. Jones’ conviction of RCW 9.87.010(7), I would have to find the terms “lewd” and “dissolute” capable of withstanding her challenge of unconstitutional vagueness and overbreadth.
The fundamental principle which has impelled courts to declare criminal statutes to be void for vagueness or over-breadth is that “[a]ll are entitled to be informed as to what the State commands or forbids.” (Footnote omitted.) Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 59 S. Ct. 618 (1939).
To be consistent with due process, a penal statute or ordinance must contain ascertainable standards of guilt, so.that men of reasonable understanding are not required to guess at the meaning of the enactment. Winters v. New York, 333 U.S. 507, 92 L. Ed. 840, 68 Sup. Ct. 665 (1948). A law that fails to give fair notice of what acts will be punished is violative of due process. Ibid.
Seattle v. Drew, 70 Wn.2d 405, 408, 423 P.2d 522, 25 A.L.R.3d 827 (1967).
The questionable uses of vagrancy statutes are matters of well-known legal history. Papachristou v. Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972). Deliberate vagueness is their hallmark.
These statutes are in a class by themselves, in view of the familiar abuses to which they are put. See Note, 47 Col. L. Rev. 613, 625. Definiteness is designedly avoided bo as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense.
Winters v, New York, 333 U.S. 507, 540, 92 L. Ed. 840, 68 S Ct. 665 (1948). (Frankfurter, J., dissenting.)
*11Maloney’s offensive conduct was his persistence in selling a “ ‘so-called underground newspaper’ ” (State v. Maloney,, supra at 924) on the campus of the Spokane Community College in defiance of express admonitions that he not do so. The prosecution, the judge and the jury believed that this made him a “disorderly” person. By carrying his challenge to the Supreme Court, Maloney was able eventually to establish the de facto impreciseness of the word “disorderly,” but, though acknowledging the statute’s over-breadth, the court chose only to reverse his conviction under RCW 9.87.010(7), for the reason that the evidence did not establish “overt misconduct violative of the public peace.”1 State v. Maloney, supra at 926.
If the word “disorderly” required judicial “limiting or narrowing” to achieve constitutionally required definiteness, how much more in need of judicial surgery are the words “lewd” and “dissolute”! Further, to be “disorderly,” one must be guilty of “overt misconduct,” necessarily an act; while the terms “lewd” and “dissolute” describe one’s character or status without reference to any act.
I do not suggest that the legislature may not properly determine that Ms. Jones’ commercial activity should be criminally proscribed, even though performed in private with a consenting adult. For example, RCW 9.79.1202 makes several lewd acts criminal. But I believe that we should forthrightly declare that the crime of vagrancy cannot constitutionally be defined in the broad and imprecise wording of RCW 9.87.010(7). Criminal laws must be directed toward action, not status. Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962); accord, Hughes v. Rizzo, 282 F. Supp. 881 (E.D. Pa. 1968).
Quite probably, one addicted to drugs poses a much *12greater threat to society than a “lewd or dissolute person.” Certainly the status of “being addicted to the use of narcotics” is a more precise definition than the status of being a “lewd or dissolute person.” But in Robinson v. California, supra, the United States Supreme Court struck down a California statute which made it a misdemeanor to “be addicted to the use of narcotics.” The court pointed out that the state’s broad powers to control drugs should be used to punish “a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration” (Robinson v. California, supra at 666) rather than to punish for the “ ‘status’ of narcotic addiction.”
The majority reasons that, in any event, Ms. Jones was not misled because of any statutory vagueness or over-breadth. She testified that she would not perform an “extended” massage if she knew that her customer was a police officer. But such reasoning is inapposite to the issue of constitutional vagueness and overbreadth. Ms. Jones may well have had good reason to suspect that current police policy considered the giving of an “extended” massage to evidence a lewd and dissolute character. But she would be extremely naive not to know that police policy with reference to the enforcement of moral standards is subject to change.
It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. See Stromberg v. California, 283 U. S. 359, 368; Lovell v. Griffin, 303 U. S. 444. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.
(Italics mine.) Lanzetta v. New Jersey, supra at 453.
The meanings of the terms “lewd” and “dissolute” are uncertain in and of themselves without resort to current moral standards. But the impossibility of “applying contemporary community standards” to moral issues has been demonstrated by the flood of obscenity cases spawned by Roth v. United States, 354 U.S. 476, 489, 1 L. Ed. 2d 1498, 77 *13S. Ct. 1304 (1957); State v. Cox, 3 Wn. App. 700, 477 P.2d 198 (1970). The constitution requires that a criminal statute be sufficiently definite to give reasonable notice of the prohibited conduct to those who would avoid its penalties and to apprise judge and jury of standards for the determination of guilt. Lanzetta v. New Jersey, supra.
A criminal statute is unconstitutionally vague when it leaves the standard of guilt to the variant views of the different courts and juries which may be called upon to enforce it.
State v. Spence, 81 Wn.2d 788, 795, 506 P.2d 293.(1973).
The words “lewd” and “dissolute” mean different things to different people. Their use neither gives reasonable notice of prohibited conduct nor affords judge or jury reasonable standards for judging guilt or innocence.
I would declare that RCW 9.87.010(7) is unconstitutionally vague and overbroad.
“1Maloney’s conviction under RCW 9.87.010(13) was, however, affirmed.
“Every person who shall lewdly and viciously cohabit with another not the husband or wife of such person, and every person who shall be guilty of open or gross lewdness, or make any open and indecent or obscene exposure of his person, or of the person of another, shall be guilty of a gross misdemeanor.”