(concurring in part and dissenting in part).
I concur on rape and dissent on sodomy.
Defendant was convicted of sodomy. Section 40A-9-6 N.M.S.A.1953 (2nd Repl. Vol. 6). In the trial court, by motion, written and oral, defendant moved to dismiss the sodomy charge because the statute was unconstitutional. The motion was denied. On appeal, (1) defendant had standing to challenge the constitutionality of the statute in this court; (2) the statute is unconstitutional.
1. Standing to challenge constitutionality of statute should not be resolved by expediency.
In a dissent in Richardson v. United States, 465 F.2d 844 (3rd Cir. 1972), Judge Adams wrote:
The question of standing has confounded courts and commentators for many years. Although the Supreme Court has considered the problem in several different contexts, and many learned and provocative articles have discussed the Supreme Court decisions, the law is still quite murky.
The traditional test for determining standing is whether there is a sufficient nexus between the status of the defendant and the statute being challenged which sends defendant to prison. If the sodomy statute sends defendant to the penitentiary, it certainly affects his rights to freedom.
The majority rely on State v. Kasakoff, 84 N.M. 404, 503 P.2d 1182 (Ct.App.1972). It held a defendant had no standing if he did not claim or argue (1) he was a member of a class discriminated against by the sodomy statute or (2) that his rights have been impaired by application of the statute to him.
To conclude that a man’s rights are not impaired by imprisonment is a return to the philosophy of the middle ages.
“Judicial expediency” in determining standing to challenge the constitutionality of a statute is used here to mean: the discretion exercised by an appellate court to achieve an immediate end, “lack of standing,” to avoid the ultimate end to determine a constitutional issue; to determine what is right and just. If an appellate court does not desire to determine a constitutional question, it may avail itself of its “almost inexhaustible arsenal of techniques and devices” to avoid constitutional judgment. We should listen to critical analysis of “standing.”
First, the constitutionality of a criminal statute is jurisdictional and will be considered on review. State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969). “If the law is void, no crime has been committed and none can be committed under it, and the court has no jurisdiction over the person of the defendant or the subject-matter of the cause. It is a proceeding to punish a man where there is no law authorizing the same.” State v. Diamond, 27 N.M. 477, 202 P. 988, 20 A.L.R. 1527 (1921). Unconstitutional acts are as inoperative as though they had never been passed. Town of Las Cruces v. El Paso Cotton Industries, 43 N.M. 304, 92 P.2d 985 (1939). If the sodomy statute is unconstitutional, no crime can be committed under it. No citizen can be imprisoned.
The only reason defendant’s standing was pushed down is because defendant did not claim that consensual sexual deviation is a deprivation of his constitutional rights. This is called “judicial expediency.” There is no question here of an unconstitutional feature of the statute; the entire statute is void.
Second, on sodomy, the majority opinion states:
Defendant’s acts were committed with force and without the consent of the prosecutrix.
“Force is not an element of the crime.” Washington v. Rodriguez, 82 N.M. 428, 483 P.2d 309 (Ct.App.1971). The trial court did not instruct the jury that “force” was necessary to prove the offense of sodomy. The jury did not determine that issue of fact. The jury found defendant guilty of consensual sodomy as defined in the statute. On appeal, we have no right to review the evidence to determine issues of fact not submitted to the jury to find an excuse for avoiding judgment on the constitutional issue.
It is obvious that defendant’s rights were impaired by the sodomy statute. He was charged with its violation. He was convicted. The constitutionality of this legislative act is open to attack. State v. Hines, 78 N.M. 471, 432 P.2d 827 (1967). State v. Kasakoff, supra, should be overruled. See Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).
Third, if a defendant will go to the penitentiary on the basis of a criminal law which he declares to be invalid, we should not deliberately avoid examination of the constitutionality of the statute. If it is unconstitutional, it was never in existence and defendant cannot be charged with the crime under that statute. It is the essence of judicial duty to determine all questions upon which the decision of a case before us depends. I adopt the “classical theory.” Scharpf, Judicial Review And The Political Question: A Functional Analysis, 75 Yale Law Journal, 517, 518 (1966) wrote:
For the protagonists of the “classical theory” of judicial review, there can be no such discretion. They insist, as did John Marshall in Marbury v. Madison, [5 U.S. (1 Cranch) 137, 177-178, 2 L.Ed. 60 (1803)] that the power of judicial review rests ultimately upon the constitutional duty of the judiciary “to say what the law is” — that is, to exercise its independent judgment in finding, interpreting and applying the law (including the law of the Constitution) whenever the decision of a case and controversy should depend on it. (Emphasis by author)
This rule should be applicable in all criminal cases under which a defendant is directly charged with violation of a criminal statute. We must not demand an admittance by the parties of conduct which violates the criminal statute and then request prosecution.
For one example: To have “standing” and to follow the dictates of judicial expediency to test the constitutionality of the sodomy statute, the defendant and the prosecutrix, or a married man and woman must admit they committed consensual sodomy and then one charge the other with violation of the statute. Both parties are principals under the statute. Both may go to the penitentiary. This is not right or just or socially expedient. Yet, in holding a defendant does not have “standing”, a court does not hesitate to say: “We shall decide that question when it is properly presented to us.” Hughes v. State, 14 Md.App. 497, 287 A.2d 299 (1972). This standard of judicial opinion does not meet the test of justice under law.
We should not seek shelter on “standing” merely because the determination of the issue might be unpopular, or even extremely unpopular, but nevertheless right or just. The legislature and the governor can amend this sodomy statute by vote and by a flip of the pen. We have a duty to determine the constitutionality of the sodomy statute to protect the rights of innocent persons.
In all cases touching life or liberty, I deem it the duty of this court, when once it assumes jurisdiction of a case, to protect citizens on constitutional issues whether regarded or disregarded in the court below.
A review of judicial decisions and analysis thereof on the issue of “standing” follows no definite pattern. It is a “crazy quilt.”
The “standing rule in criminal cases should also' apply as a matter of public policy where defendant and third parties are involved in the constitutionality of the law.” See Sedler, Standing To Assert Constitutional Jus Terti In The Supreme Court, 71 Yale Law Journal, 599, at 624 (1962).
Defendant had the right to assert the invalidity of the sodomy statute because his rights were adversely affected by it.
2. The sodomy statute is unconstitutional.
For the same reasons stated in the dissent in State v. Trejo, 83 N.M. 511, 513, 494 P.2d 173 (Ct.App.-1972), the sodomy statute is unconstitutional. The purpose of this dissent is not to sanction public or private deviant sexual intercourse made unlawful by illegal conduct. Its purpose is to seek adoption'of the Model Penal Code of the American Law Institute, 1962, § 213.2 to avoid an invasion of the right of privacy. See Sodomy And The Married Man, 3 U.Richmond L.Rev. 344, 347 (1969).
Courts have said that no wife would charge her husband with sodomy committed in the privacy of the home. When done with force, it has occurred. Towler v. Peyton, 303 F.Supp. 581 (D.C.Va.1969).
However, it has been held that the sodomy statute cannot be applied to private consensual sexual acts involving adults. Rittenour v. District of Columbia, 163 A.2d 558 (D.C.Mun.Ct.App.1960); Schaeffers v. Wilson, C.A. 1821-71 (D.C.D.C. May 24, 1972); Morrison v. State Board of Education, Cal.App. 74 Cal.Rptr. 116 (1968), vacated 82 Cal.Rptr. 175, 461 P.2d 375 (1969); In re Labady, 326 F.Supp. 924 (D.C.N.Y.1971); United States v. Griffith, Super.Ct.D.C. No. 53440-72, March 19, 1973; United States v. Moses, et al., Super. Ct.D.C. No. 17778-72, November 3, 1972; United States v. Doe, et al., Super. Ct.D.C. No. 71860-71, February 21, 1973.
A man’s home is his castle. If he placed in his home Michelangelo’s “David”, or exhibited a movie showing consensual sex deviation, or hung on his wall, Altdorfer, Lot and His Daughter and Carracci, Love in the Golden Age, and other paintings of Sex and Erotica, all of which are shown publicly, does legislative power extend into this man’s home? Can it send him to prison? Of course not, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Constitutional legislative power in this area covers “laws providing for the preservation of the public peace, health or safety.” [Emphasis added] Article IV, Section 1, Constitution of New Mexico, Repl.Vol. 1, page 288.
For the same reasons, the legislature cannot invade the privacy of a person’s conduct in his dwelling place or shelter.