(dissenting) — I dissent for three reasons. First, the majority has based its analysis of the statute in question, RCW 81.48.020, on the erroneous premise that it may properly be distinguished from statutes containing very similar language this court has found void for vagueness. Secondly, the majority places a nearly insurmountable burden on defendants to prove the unconstitutionality of a statute despite abundant precedent indicating its unconstitutionality. Finally, the majority upholds a jury instruction that erroneously states that the railroad company's policies determine what is the lawful operation of a train.
Vagueness
This court has repeatedly held that criminal statutes that contain terms such as "lawful excuse", "unlawful purpose", or "lawful order", without a clear definition of those terms in the body of the statute or in common law are unconstitutionally vague. State v. Richmond, 102 Wn.2d 242, 683 P.2d 1093 (1984); State v. Hilt, 99 Wn.2d 452, 662 P.2d 52 (1983); State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982); Seattle v. Rice, 93 Wn.2d 728, 612 P.2d 792 (1980); Bellevue v. Miller, 85 Wn.2d 539, 541, 536 P.2d 603 (1975). RCW 81.48.020 is similarly flawed by failing to give potential defendants notice of what is a "lawfully operated" train.
The majority attempts to distinguish these cases by alleging that in our prior decisions, the challenged language referring to "lawful" behavior "was directed toward the *313activities of the accused." Majority, at 308. The majority does not discuss our decision in Seattle v. Rice, supra, which is directly on point. In Rice, the defendant was charged with criminal trespass after he remained on the premises of the Seattle Public Safety Building in an intoxicated condition after being banned "forever" from such premises by an officer of the Seattle Police Department. The ordinance under which the defendant was convicted contained the following language:
A person, who, regardless of his intent, 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.
(Italics mine.) Seattle ordinance 102843. This court found the term "lawful order" 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 proscribed. 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.
The instant case is indistinguishable from Rice. RCW 81.48.020 does not define the phrase "lawfully operated"; as with the defendant in Rice, the defendants here were required to guess whether the actions of third parties were lawful to determine the legality of their own acts.
It does not make sense to treat statutes that require defendants to guess at the lawfulness of the actions of others any differently from statutes requiring them to guess at their own lawfulness. If anything, however, it is more difficult for potential defendants to determine if others are act*314ing in a lawful manner. See Mountlake Terrace v. Stone, 6 Wn. App. 161, 167-69, 492 P.2d 226 (1971).
The majority states: "The proscribed activity being clearly stated, the defendants cannot claim constitutional confusion as to the lawfulness of the operation of the train." Majority, at 308. This suggests that because the statute clearly proscribes obstruction, hindrance or delay, it is not necessary to define the object of such obstruction. The logic of this argument is not clear. The object of the activity: lawfully operated trains, is as crucial to this statute as, for example, a victim in a statutory rape statute. The majority would not suggest that a statutory rape statute that defined the victim as "someone who might be too young" would be constitutional simply because the proscribed activity of the perpetrator is clearly defined.
The majority makes the same error as the trial court in excising the controversial language from its summary of the statute: "RCW 81.48.020 forbids a definite course of conduct — willfully obstructing, hindering or delaying the passage of a train." Majority, at 308. The summary should include the words "a lawfully operated train." This court is required, when possible, to give effect to every word and clause in a statute, and no part should be deemed inoperative or superfluous unless the result of obvious mistake or error. Cox v. Helenius, 103 Wn.2d 383, 387-88, 693 P.2d 683 (1985). An element of RCW 81.48.020 is that the obstructed train car must be "lawfully operated". The majority violates defendants' due process rights when it reads this element out of the statute. See Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979).
There are many ways the law could be written that would not be vague. For instance, the law would be constitutional if it did not contain the phrase "lawfully operated." A good faith belief that the train is operated illegally or poses a threat to public safety could be an affirmative defense. As written, however, the constitutional deficiencies of the law cannot be cured.
*315Burden of Proof
My second reason for dissent is that the majority opinion does not adequately address an important issue in the case that was properly preserved and presented by the petitioners. The majority gives short shrift to the issue of the placement of the burden of proof of the constitutionality of a statute in cases where like language in other statutes has already been ruled inherently vague by this court. Our failure to address this issue leaves our state law uncertain on the question, and the court properly should address it.
The majority opinion restates this court's formulation of the heavy burden of proof imposed upon a litigant posing a challenge to the constitutionality of a duly enacted statute. In so doing, it implicitly rejects — without actually addressing — respondent's argument that, in a flagrantly unconstitutional statute containing language ruled inherently vague in other statutes by this court, the presumption of constitutionality must be modified. The issue has not been clearly resolved by this court before, and the Court of Appeals accepted discretionary review under RAP 2.3(d) partly in order to address this question.
As stated by the Court of Appeals in its order granting discretionary review, "this is a case of considerable public interest in view of the political nature of petitioners' protest against the train's cargo." The question presented is one of great public import to citizens exercising their constitutional rights of free political expression.
A litigant posing a challenge to the constitutionality of a duly enacted statute faces a heavy burden. The presumption of constitutionality in such cases is a strong one. Silver Shores Mobile Home Park, Inc. v. Everett, 87 Wn.2d 618, 625, 555 P.2d 993 (1976); State v. Primeau, 70 Wn.2d 109, 422 P.2d 302 (1966). Petitioners persuasively argue, however, that a statute which is flagrantly unconstitutional is not entitled to this presumption of constitutionality, citing this court's decision in State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982). Petitioners reason the presumption should not operate in cases where the statute under chai-*316lenge is couched in the same or very similar terms to others previously overturned by the court.
The "beyond a reasonable doubt" standard of persuasion of a statute's unconstitutionality cited with approval by the majority is particularly inappropriate to this case.
It reflects an excessive level of deference to the legislative and executive branches, almost to the point of placing their actions above the constitution.
Another problem with the beyond a reasonable doubt standard is that it was originally applied to facts, not law. It was designed to prevent innocent people from being convicted of serious crimes. When applied to legal questions of constitutional validity, however, this rigorous standard has no such noble goal. Rather, it serves to undercut the fundamental rights of Washington citizens
(Footnotes omitted.) Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 508 (1984).
In State v. White, supra, this court held under article 1, section 7 of the Washington State Constitution that an arrest based on a subsequently invalidated statute was itself invalid, and that evidence gathered incident to that arrest must be suppressed. In so doing, we distinguished the holding of the United States Supreme Court in Michigan v. DeFillippo, 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627 (1979), noting that ordinances "almost identical" to the one challenged by White had been held unconstitutionally vague in our prior opinions. White, at 102. Accordingly, we concluded that the statute under challenge was flagrantly unconstitutional and within an exception shaped by the Court in DeFillippo in its statement:
The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality— with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.
White, at 103, citing DeFillippo, at 38. We went on to hold:
*317Where substantially the same language in a different statute has been adjudicated unconstitutional by a court of this state, a statute that has not been previously construed may nevertheless be "so grossly and flagrantly unconstitutional" by virtue of a prior dispositive judicial holding that it may not serve as the basis of a valid arrest.
White, at 103. In other words, a person of reasonable prudence would be bound to see the flaws in such a statute.
Our reasoning was largely premised on the need not only to deter the police from enforcing statutory law even when it mandates unconstitutional conduct, but, as Judge Browning wrote, "the public interest is served by deterring legislators from enacting such statutes.” White, at 107, citing Powell v. Stone, 507 F.2d 93, 98 (9th Cir. 1974), rev'd on other grounds, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976). As discussed above, the rulings of this court have consistently overturned statutes couched in terms such as those used in RCW 81.48.020, where no statutory or common law definition of the otherwise vague statutory terms exists. When a statute is couched in terms very similar to others previously overturned for the inherent vagueness by this court, the presumption of validity is utterly inappropriate. This court's reasoning in White compels this conclusion:
The exact language of the statute in question need not be invalidated on a case-by-case basis. If such an approach were required, legislative bodies would be encouraged to pass other such constitutionally infirm measures, knowing that the police would get "one free bite" at the expense of an individual's constitutionally protected rights. This type of "legislative legerdemain [is] not to be countenanced."
White, at 103-04. The statute at bar is so similar to other statutes previously declared unconstitutional as to be "flagrantly" unconstitutional, and is not entitled to a presumption of validity.
In any event, this court should abandon the use of the phrase "beyond a reasonable doubt" altogether in the con*318text of determining the constitutionality of statutes. While we attempt to find statutes constitutional to uphold the intent of the Legislature where possible, this should not be done at the expense of defendants using a standard applicable to prosecutors' burden of proving elements of crimes.
Instruction 5
The majority approves a definition of criminal behavior that leaves prosecution of the protesters in the instant case and others in the future to the discretion of private industry. Moreover, the majority's approval of instruction 5 to the jury sanctions reading an element out of a criminal statute so as to leave defendants without the possibility of arguing their case to the jury. Instruction 5 provided that, within the context of RCW 81.48.020:
"Lawfully" means with the permission of and under the authority of the railroad company.
Clerk's Papers, at 74. The effect of this instruction is to inform the jury that any train the railroad company permits on the tracks is lawfully operated. The lawful authority for operation of trains in this state is derived from compliance with the applicable governmental laws and regulations, rather than the policies of commercial entities. Under instruction 5, if the railroad company were to operate trains in a blatantly dangerous manner in violation of every duly promulgated statute or regulation, it would still be "lawfully operated". The instruction clearly misstates the law.
The majority's reading of instruction 5 does more than present the plain meaning of the jury instruction or even interpret it in conformance with the usual rules of construction. The majority maintains the instruction connoted "that the train was operated by a company having authority to do so within the state of Washington ..." Majority, at 310. If the instruction had done so in fact, we would be presented with a different case. The majority has reached out to save an incorrect and inadequate statement of law by adding to it the very language that would have given the *319jury a correct statement of the law, and given defendants their right to argue their theory of the case.
The effect of the erroneous jury instruction was devastating to defendants. Their theory of the case hinged on the unlawfulness of the operation of the train. The prosecutor barely attempted to show the train was lawfully operated. The State's only "evidence" on the subject was an assertion by the train's engineer. That assertion had no foundation whatsoever, and the engineer admittedly had no knowledge as to whether the train complied with regulations regarding hazardous cargoes. Report of Proceedings, at 44, 47. It is manifestly unfair to allow this scintilla of evidence to support the conviction against defendants when they were given no opportunity to argue the train was not lawfully operated. See Tiderman v. Fleetwood Homes, 102 Wn.2d 334, 337-38, 684 P.2d 1302, 45 A.L.R.4th 743 (1984).
The majority misstates the testimony when it quotes the prosecutor's argument to the court allegedly paraphrasing the defendants' testimony they did not stop the train because it was violating federal, state, or local transportation laws. Majority, at 310. In fact, there is no such testimony in the record, and the defendants made it abundantly clear that they believed the "white train" to be in violation of state, federal, and constitutional law, as well as international treaties. E.g., Report of Proceedings, at 158-74. After lengthy argument on jury instructions that would have placed the train's operation in compliance with at least some of those laws before the jury, the court abruptly decided to give the State's proposed instruction 5, deleting reference to any law or rule other than the railroad company's own policies. Report of Proceedings, at 174-75.
The effect of instruction 5 was to require a presumption that if the railroad operated a train in accordance with its own procedures, the operation was lawful. Presumptions as to any element of a crime violate due process rights guaranteed by the fourteenth amendment to the United States Constitution. Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979).
*320Because RCW 81.48.020 is facially vague, I would dismiss the convictions. Even if the statute is upheld, the jury instructions did not allow the defendants to argue their theory of the case, entitling them to a remand.
Brachtenbach, J., concurs with Utter, J.