(dissenting) — The Anti-Harassment Act of 1985 purports to make "unlawful the repeated invasions of a person's privacy by acts and threats which show a pattern of harassment designed to coerce, intimidate, or humiliate the victim." RCW 9A.46.010. I commend this goal and maintain that victims of such harassment are entitled to every protection of the law. The act as written, however, is in no way designed to accomplish its purported goals, and contains language so vague that persons of reasonable understanding would have to guess whether their conduct falls within its language. This vagueness works not only to the detriment of potential defendants, but also to the detriment of potential victims who may continue to be harassed by persons who do not believe they fall within the scope of the act.
The majority fails to follow this court's clear line of cases in which we held unconstitutionally vague statutes with the same infirmities as the Anti-Harassment Act of 1985. Furthermore, the majority follows an approach that we soundly rejected in State v. Richmond, 102 Wn.2d 242, 683 P.2d 1093 (1984), by attempting to save the act by listing some laws informing potential defendants when there is "lawful authority" to threaten harm, but failing to identify the meaning of that term. The majority adds vagueness to the vagueness doctrine by seeming to overrule settled rulings by this court, and then failing to acknowledge it is doing so, leaving this area of law entirely unsettled.
Because the section of the antiharassment act under which petitioner was convicted is unconstitutionally vague, I would reverse.
*17I
Smith challenges RCW 9A.46.020 as unconstitutionally vague on its face. The factual setting of a case is irrelevant where the entire statute is challenged as unconstitutionally vague. Bellevue v. Miller, 85 Wn.2d 539, 541, 536 P.2d 603 (1975). "When it is alleged that a statute is wholly unconstitutional, the court looks not to the conduct of the defendant, but to the face of the statute to determine whether any conviction under the statute could be constitutionally upheld." State v. Maciolek, 101 Wn.2d 259, 262-63, 676 P.2d 996 (1984), quoting State v. Hood, 24 Wn. App. 155, 158, 600 P.2d 636 (1979).
This court has held that a statute is presumed constitutional unless its unconstitutionality is proven "beyond a reasonable doubt." Maciolek, at 263. This standard requires clarification, as it appears to be the same standard as for conviction of crimes, which serves to protect innocent people from conviction on too little evidence. ”[T]he reasonable-doubt standard . . . 'impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue."' In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), quoting Dorsen & Rez-neck, In re Gault and the Future of Juvenile Law, 1 Fam. L.Q. 1, 26 (Dec. 1967). The relation between a statute and the constitution, on the other hand, does not involve the question of proof of facts, but is one of pure law. An unconstitutional statute is void, and the strength of the proof of facts in a given case is irrelevant to our determinations of facial constitutionality. Bellevue v. Miller, supra.
There are two main reasons for the strong presumption in favor of upholding statutes against constitutional challenges. The first is our respect for the legislative branch as a co-equal branch of government; as with the judiciary the Legislature is sworn to uphold the constitution. The second is that the Legislature speaks for the people. "Under our constitution, the legislature passes laws and repeals laws as the sole representative of the people." Gruen v. State Tax Comm'n, 35 Wn.2d 1, 7, 211 P.2d 651 (1949). This court is *18therefore hesitant to strike a duly enacted statute unless fully convinced after a searching legal analysis that the statute is unconstitutional. If, however, our analysis compels the conclusion a statute denies criminal defendants or others their constitutionally protected rights, we are mandated to declare such statute void. Const. art. 1, § 29; see State ex rel. Luketa v. Pollock, 136 Wash. 25, 31, 239 P. 8 (1925).
II
"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." Seattle v. Drew, 70 Wn.2d 405, 408, 423 P.2d 522, 25 A.L.R.3d 827 (1967). The requirement that criminal legislation be definite is premised on two considerations: (1) citizens must have notice of what conduct is criminally proscribed, and (2) vague laws permit arbitrary arrests and convictions. Belle-vue v. Miller, supra; Kolender v. Lawson, 461 U.S. 352, 358, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983).
This court has repeatedly held unconstitutional criminal statutes in which criminality hinges on some conduct or motivation being "lawful", but there is no guidance as to what "lawful" means in the context of those statutes. In Seattle v. Rice, 93 Wn.2d 728, 612 P.2d 792 (1980), this court found unconstitutional a Seattle ordinance, which stated in part: " [a] person, who . . . enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of the premises or some other authorized person." Rice, at 730, quoting Seattle ordinance 102843. The Rice court found this language unconstitutionally vague.
The term "lawful order" in the Seattle criminal trespass ordinance is not sufficiently specific to inform persons of reasonable understanding of what conduct is *19proscribed. Many questions must be answered to determine if an order is a "lawful order." Who is an authorized person? Was the substance of the order lawful? Was there a valid reason for the order? How long is the order to be in effect? The foregoing is but a sample of what must be considered and certainly there are many more questions which could be raised. A person receiving an order must thereupon be able to answer all such questions to know if he has received a "lawful order."
Rice, at 731-32.
This court has stricken statutes requiring defendants to determine, without any meaningful guidance, if they have a "lawful excuse" or "lawful purpose". In Bellevue v. Miller, supra, this court found unconstitutionally vague a "wandering and prowling" ordinance that defined the crime in part as manifesting an "unlawful purpose". We found the term "unlawful purpose" to be inherently subjective. Belle-vue v. Miller, supra at 545. In State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982), this court found unconstitutionally vague a statute making it a misdemeanor to obstruct a public servant by failing "without lawful excuse" to provide true information "lawfully required" by a public servant. The court noted that "lawful excuse" is not defined anywhere in the statute, and a citizen must necessarily guess at its meaning. White, at 100. Similarly, in State v. Hilt, 99 Wn.2d 452, 662 P.2d 52 (1983), this court found unconstitutional a statute prohibiting bail jumping "without lawful excuse" because that term was nowhere defined in the criminal code. See also State v. Richmond, 102 Wn.2d 242, 683 P.2d 1093 (1984) ("without lawful excuse" in child support statute is unconstitutionally vague).
I dissented to this court's opinion in State v. Aver, 109 Wn.2d 303, 745 P.2d 479 (1987), because that opinion failed to meaningfully distinguish the Miller, Rice, Hilt, White, Richmond line of cases. Aver, at 312-14 (Utter, J., dissenting). In Aver, this court attempted to distinguish that line of cases on the ground that the statute at issue in Aver used the term "lawful order" referring to the conduct of persons other than the accused. Aver, at 308. I continue to *20maintain that this fails to distinguish Rice, in which we held unconstitutional a statute that criminalized disobedience of a "lawful order" by a person other than the accused.
In the instant case, the majority deviates even further than the Auer court from our established line of cases, and boldly acknowledges that it must "repudiate" a portion of Bellevue v. Miller, supra. See footnote 3. Unlike Aver, in which this court rested its holding on the fact that the statute was vague only with respect to conduct of others, here the statute's vague language refers to the accused's own conduct.
The majority goes much further than Aver in another respect. The statute at issue in Aver criminalized interference with "lawfully operated trains." Although the statute itself did not define "lawfully operated", it is possible to determine from a network of state and federal statutory and regulatory law what is required to be a "lawfully operated train." Similarly, in State v. Miller, 103 Wn.2d 792, 698 P.2d 554 (1985), this court found the common law sufficiently defined when a citizen arrest is lawful so as to give potential defendants notice of when an assault is with intent to resist a lawful arrest. Here, the majority fails to find any statute or common law rule or rules that define when there is "lawful authority" to engage in the conduct proscribed by the antiharassment statute.
The majority attempts to define "lawful authority" by listing specific situations that might create such authority. Majority, at 9-10. That approach was rejected by this court in State v. Richmond, 102 Wn.2d 242, 683 P.2d 1093 (1984). In Richmond, this court found unconstitutionally vague a child support statute proscribing willfully omitting "without lawful excuse" to support a child. We noted that there had been prior judicial interpretation of when such lawful excuse might exist, but that it was not sufficiently specific to clarify the statute. Richmond, at 247. We further noted a limitless variety of "lawful excuses" that might result in potential defendants violating the statute "with the impression that their excuse is lawful, and only later *21find that it was not. Judges will be forced to decide what constitutes a lawful excuse on a case-by-case basis according to their personal predilections." Richmond, at 247.
Similarly, lacking any clear guidelines, a prospective defendant under the Anti-Harassment Act of 1985 may believe he or she has some lawful authority, but does not. The majority even admits that its analysis "will leave some citizens uncertain about the scope of the harassment statute's prohibition," but then trivializes the harm of this predicament. Majority, at 10. It does not explain why vagueness was intolerable when this court authored Richmond in 1984, but it is tolerable today.
The majority attempts to distinguish the statute at issue from other vague statutes because the vague language is part of an "escape clause". Majority, at 7. The lure of this distinction is superficial only. A perusal of our criminal code reveals that whether a description of an aspect of a crime is in the main description of the crime or an exculpatory exception makes no difference. No matter how the crime is described, the burden is on the State to prove every element thereof. It is thus irrelevant that the offending portion of RCW 9A.46.020 can be described as a provision that "permits the otherwise forbidden behavior." Majority, at 7. Every aspect of a criminal statute can be described as either permitting otherwise forbidden behavior or forbidding otherwise permitted behavior.
Vagueness in a statute is equally intolerable if it is in the description of the proscribed conduct or an exception to the reach of the statute. State v. Hilt, supra; State v. Hill, 189 Kan. 403, 369 P.2d 365 (1962); 21 Am. Jur. 2d Criminal Law § 17 (1981). The issue is whether the statute gives sufficient notice to defendants and guidelines to law enforcement as to what conduct is proscribed. RCW 9A.46.020 does not do so.
Ill
I am disenchanted with the majority's reference to criticisms that the void-for-vagueness doctrine is in itself ill *22defined, and that there is an "'almost habitual lack of informing reasoning'". Majority, at 13. The majority even states, "courts may be doing to legislatures precisely what the vagueness doctrine prohibits legislatures from doing to citizens". Majority, at 13. This is in the same opinion in which the majority overrules a consistent, reliable line of cases voiding statutes with certain specific infirmities, and then blandly states, "As we hope our analysis makes clear, our holding in this case is entirely consistent with our prior applications of the vagueness doctrine to statutes incorporating the concept of 'lawfulness'". Majority, at 12. And this is in the same opinion in which the majority in a footnote states, "We express no opinion on the continuing vitality of our decision in Seattle v. Rice, 93 Wn.2d 728, 612 P.2d 792 (1980), which appears to have been grounded firmly on the portion of the Miller opinion we now repudiate." Footnote 3.
IV
RCW 9A.46.020 is void for vagueness because it is framed in terms so vague that persons of reasonable understanding must necessarily guess at its meaning and differ as to its application. I would reverse the harassment conviction.
Pearson, C.J., concurs with Utter, J.