dissenting:
I agree with Justice Springer’s dissent that the trial court’s decision should be affirmed. I write separately to express my concern with what I regard as judicial legislating. Although a court can limit the scope of a statute to avoid vagueness, some justification for this limitation must exist. See, e.g., Sheriff v. Martin, 99 Nev. 336, 341, 662 P.2d 634, 637-38 (1983) (construing the term “cheat” in light of its statutory purpose); Hogan v. State, 84 Nev. 372, 374, 441 P.2d 620, 621 (1968) (drawing upon the common law definition of sodomy to avoid vagueness).
The majority relies upon the general presumption of constitutionality which our statutes enjoy to justify its reading of NRS 201.020(l)(a). Although this presumption justifies narrowing the scope of a statute in appropriate circumstances, it provides no guidance for determining that scope.
The language of NRS 201.020 relevant to the present action was added in 1969. See 1969 Nev. Stat., ch. 195, § 1 at 271. The legislative history offers little help in determining exactly what the legislature intended in its use of the term “persisted.” The senate judiciary committee simply noted that the amendment was intended to increase the penalty for failure to pay support as the amount of time in which support is not paid increases. Hearing on AB 252 before the Senate Judiciary Committee, March 25, 1969, p.7. For all of the reasons stated both by Justice Springer and the district court, the legislature’s use of the term “persisted” to carry out this purpose is vague. Indeed, one may persist, as the term is commonly understood, in refusing to pay support for long periods of time without actually persisting in
*66such conduct as the term could be reasonably defined under NRS 201.020(l)(a).1
With no guidance, the majority decides that to persist in failing to pay child support is to fail to pay the full amount of support for two consecutive months. Absent some guidance, however, this decision merely pastes a judicial facade upon a crumbling edifice best left to the legislative wrecking ball.
A brief excursion into the otherworldly realm of statistics justifies my concern. First, Nevada already has one of the highest incarceration rates in the nation. Judicial Assessment Commission, Simplifying the Maze: A Long Range Strategic Plan for Nevada’s Court System, 46 (1994). The inmate population of jails in Washoe and Clark Counties far exceeds their combined construction capacity of approximately 2,000, further burdening taxpayers and necessitating early release programs, work furlough, and other alternatives to jail time. Id. at 47. Second, an estimated 18,673 children for whom an order of support has been established in Nevada did not receive any support at all. See Memorandum from Key Zunino, Chief, Nevada Child Support Enforcement Program, to Karen Kirchgasser, Senator Bryan’s Office 2 (March 29, 1994) (on file with author).2 Thus, the number of obligated parents who paid no support approaches 10,000, considering that an obligated parent supports an average of 1.87 children. Id. Who, among this vast number, would district attorneys prosecute under NRS 201.020(l)(a)? Further*67more, because these obligated parents are often unemployed or underemployed, see id. at 1, who will defend them? I am concerned that the group ultimately punished by NRS 201.020(l)(a) will be taxpayers, while the group receiving the greatest benefit may be the legal profession.
I join in condemning all parents who fail to pay full child support. However, before we activate the legal machinery to lock them all up, we should ask the legislature to state with greater precisión what it intended when it enacted NRS 201.020(l)(a). Until then, the purpose of NRS 201.020(l)(a) is too vague to justify either widespread enforcement or judicial tinkering.
Numerous troubling scenarios arise because the statute does not answer whether partial or sporadic payment constitutes a persistent failure to pay support. Any attempt by this court to answer this question will, I fear, create even more confusion. If, as the majority suggests, persistent failure to pay child support is the failure to pay the full amount of support for two consecutive months, then would one who makes full payment only every other month be shielded from the operation of NRS 201.020(l)(a)? Further, would one making monthly payments just pennies shy of the full amount be subject to prosecution? Similarly, because the majority states that only persistent failure to pay support for more than one year triggers the felony provision of the statute, could one flout this provision (as opposed to the misdemeanor and gross misdemeanor provisions) by making only one monthly payment every year, no matter how many years one persists in doing so?
It is possible to quibble over this estimate because precise statistics for children residing in Nevada are not readily available. The estimated number includes children who are now living out of state but look to Nevada as the enforcing authority. The number also includes children residing in Nevada who depend upon another state for enforcement. However, the estimate does not include children whose parents use the services of a private attorney, nor does it include children receiving only partial support, such as Rita Gray’s children. Hence, the number of children whose parents are subject to prosecution under NRS 201.020(l)(a) could be much higher than the estimated number discussed above.