State v. Robertson

WARDEN, J.,

dissenting.

Because I am satisfied that the trial judge was correct in finding ORS 163.275 unconstitutionally vague, I would affirm and therefore, respectfully dissent.

*637In State v. Blocker, 291 Or 255, 630 P2d 824 (1981), the Supreme Court summarized the constitutional underpinnings of the vagueness doctrine:

" 'Vagueness’ means that a penal law is stated in terms from which those to whom it is addressed — potential defendants, prosecutors, courts, and jurors — cannot discern what conduct the lawmaker did or did not mean to include in the prohibition. Such a failure of communication in penal laws has been held to contravene article I, section 21 of the Oregon Constitution because 'they not only allow a court or a jury to define a crime but to do so after the fact,’ Megdal v. Board of Dental Examiners, 288 Or 293, 298, 605 P2d 273 (1980), citing State v. Blair, 287 Or 519, 601 P2d 766 (1979); State v. Hodges, 254 Or 21, 457 P2d 491 (1969), and to deny due process under the Fourteenth Amendment because they do not give fair notice of what they proscribe. See, sources cited in Megdal, 288. Or at 299 and note 5.” 291 Or at 260.

In State v. Sanderson, 33 Or App 173, 176, 575 P2d 1025 (1978), we found that the language of a statutory provision defining the offense of harassment was over-general in that the phrase "conduct that alarms or seriously annoys another person” gave no basis to distinguish between antisocial conduct which was intended to be prohibited and socially tolerable conduct which could not reasonably have been intended to be subject to criminal sanction. Here, the language of the statute is such that it does not provide a basis for distinguishing between innocuous and criminal acts of coercion. The statute on its face is impermissibly vague.

We have a duty to construe statutes to preserve their constitutionality where that is possible. State v. Smith (Cheryl), 31 Or App 749, 751, 571 P2d 542 (1977). "A vaguely worded statute will not be held void if it is susceptible to a limiting construction which will relieve it of constitutional infirmity.” State v. Sanderson, supra, 33 Or App at 177. The sources of such construction are legislative history or prior judicial interpretation. In Sanderson, there was no prior judicial interpretation of the statute and the legislative history did not allow us to limit the statute.

There is no prior judicial interpretation of ORS 163.275(l)(e). The legislative history likewise is not helpful. The threats which form a basis for the offense of *638coercion were considered equivalent to those contained in the related provision on theft by extortion. Oregon Criminal Code of 1971, 129 § 101; 131 § 102; 171-72 § 127, Commentary, (1975 ed). The commentary on theft by extortion explains:

"Paragraph (e) amounts to a threat to defame. Unlike defamation actions, the truth of the matter threatened to be exposed would not constitute a defense to a prosecution under this subsection. The prohibition is directed against 'selling’ forbearance from defamation and not against the publication of defamation itself. It is emphasized, however, that the subsection is not intended to make it criminal to conduct legitimate negotiation or to agree to settlement of an asserted claim as consideration for a promise to forbear from civil litigation.”

Whatever may have been the intent of the Criminal Law Review Commission, it is clear that the category of threats referred to in the statute is much broader than that of defamatory statements, because the asserted fact may be true for the purpose of coercion, whereas it must be false for the purpose of defamation. The category of threats would perhaps more accurately be described as incorporating those which would constitute the tort of invasion of privacy, but that does not find support in the legislative history. Inducing, even by a threat to defame, a completely innocuous action or one to which the victim has no serious objection, but from which he has a legal right to refrain, may not have been intended by the legislature to be sanctionable as criminal behavior. But we cannot determine that question from the face of the statute.

The problem with ORS 163.275 is that it applies to matters which it is doubtful the legislature meant to proscribe, as well as those which it clearly did. On its face, this statute would apply to a newspaper reporter who advises a public official, e.g., a legislator, county commissioner or city councilman, that if the public official votes in favor of a matter which is before the public body of which he is a member, the reporter will publish the fact that the public official will derive some gain from the public body’s action. This statute leaves the reporter with the alternatives of going to the public official and risking prosecution and punishment for the crime of coercion or waiting to see what the public official does and, then, if the public official does *639vote his private interest, proceeding to publish the fact. Whether the reporter would, in fact, be prosecuted and punished is left up to the particular prosecutor, judge, or jury. The statute, again, on its face, does not except from its proscription acts which may be coercive, but which have historically been protected under family rights to privacy.1

When is a threat to disclose a secret unjustifiable or inexcusable and when is the potential for harm substantial? To permit a prosecutor, a judge or jury to decide these questions allows the crime itself to be redefined case by case after the fact, which is prohibited under Article I, section 21, of the Oregon constitutional provision governing ex post facto laws. See State v. Hodges, 254 Or 21, 27, 457 P2d 491 (1969) (statute defining offense of contributing to delinquency of minors held to be unconstitutionally vague). I conclude that it is not possible to limit ORS 163.275(1)(e) by construction to cure its vagueness.

The Oregon Supreme Court has expressed doubt that the problem of statutory vagueness can be avoided by reference to the conduct involved in a particular case. See Megdal v. Board of Dental Examiners, 288 Or 293, 299, n 5, 605 P2d 273 (1980). The inquiry is whether or not the conduct described in a given case falls as a matter of law within even the most restricted reading of the prohibition. See State v. Sanderson, supra, 33 Or App at 177. This approach, however, retains the constitutional defect noted in State v. Blocker, supra, and State v. Hodges, supra; that is, the crime is defined after the fact by nonlegislators.

The statute is unconstitutionally vague on its face. Defendant’s demurrer was properly sustained. I would affirm.

Husband and wife have a heated argument over husband’s coming home from a saloon in the early morning hours, pounding on the door of the house, waking wife up and insisting on being admitted to the house. Wife threatens husband that if it happens again she will not admit him to the house. Husband arrives home the next night at 2 a.m., pounds on the door and demands admission. Wife, from an upstairs window, shouts to husband, "I told you that if you came home late again after drinking and woke me up by pounding on the door that I would not let you in. Go sleep in the woodhouse.” Husband says, "If you don’t let me in, I’m going to tell everyone in the neighborhood that I slept with you before we were married.” (Coercive under the terms of ORS 163.275.) Wife retaliates, "You do, and I’ll tell them you wasn’t the only one.” (Again, coercive and prosecutable under ORS 163.275.)