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Constitutional Vagueness – Approaching the Outer Limits

By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.

With Supreme Court having granted Governor Robert McDonnell’s certiorari petition it again brought to the forefront the issue of when a statutory definition becomes so arbitrary in how it is interpreted as to make it constitutionally vague. In United States v. McDonnell the question which the Supreme Court agreed to review deals with both the definition of “official acts” and how the district court’s jury instructions defined the scope of what constitutes an “official act.” In his certiorari petition, McDonnell asserted the position that the Fourth Circuit’s interpretation of “official acts” in these statutes raised grave doubts about their constitutionality. Most significantly, McDonnell contends that the Fourth Circuit’s opinion supports an extremely vague and extremely broad interpretation of the statutes, thereby vesting prosecutors with unbridled discretion to choose targets from among virtually every elected official. Quoting from Skilling v. U.S., 561 U.S. 368 (2010), McDonnell argued that risk of arbitrary and discriminatory prosecutions raises the due process concerns underlying the vagueness doctrine and that the Fourth Circuit’s opinion construes the federal corruption statutes in a manner that leaves their outer boundaries.

The granting of certiorari in McDonnell follows a June, 2015 decision by the Supreme Court in Johnson v. U.S., 135 S.Ct. 2551 (2015) in which the Supreme Court struck down the “residual clause” of the federal Armed Career Criminal Act, a federal statute that requires the a sentencing court impose a mandatory 15 year sentence on those individuals convicted of certain predicate offenses. The “residual clause” reviewed by the Supreme Court defined as a predicate offense a conviction for a “violent felony.” Finding that term to be unconstitutionally vague the Supreme Court reminded that “the government violates the Due Process Clause when it takes away someone’s life, liberty or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes or so standardless that is invites arbitrary enforcement.

Argued before the Maryland Court of Appeals on January 11, 2016, in Hall v. State was the question as to whether Md. Code Ann., Crim. Law § 3-602.1, the criminal neglect of a minor statute, is unconstitutionally vague, both on its face and as applied in that its definition of the terms “mental injury” and “neglect” fail to give constitutional notice as what is prohibited conduct.

These three cases serve as a reminder to the criminal practitioner to consider whether a statute may be unconstitutionally vague (i) on its face; or (ii) as applied in a particular case. Jury instructions must also be carefully reviewed to ensure that the instructions do not give an overly broad scope and interpretation to the type of conduct that may be deemed criminal under statutes where elements are defined vaguely.

This article discusses the above cases in more detail and reviews selected Maryland cases that have addressed the issue of constitutional vagueness.

United States v. McDonnell (certiorari granted 1/15/16)

In McDonnell’s certiorari petition he argues that the rulings of the district court and the Fourth Circuit adopted an unprecedented and erroneous construction of “official action” under federal corruption laws thus expanding those laws to reach any official who so much as takes a phone call from a donor thus threatening to criminalize politics in America.

McDonnell’s issue turns on the proper interpretation of the phrase “official action” found in the federal bribery statute, honest-services fraud statute, and Hobbs Acts which prohibits exchanging “official action” for money, campaign contributions, or other things of value.

McDonnell states that the acts that the Fourth Circuit found to be “official acts” sufficient to affirm his conviction included (i) asking a cabinet secretary to send a deputy to a “briefing” about Star Scientific; (ii) asking researchers whether studying Star’s product would be “good”; asking his counsel to “see” him about the matter; and (iii) asking two state officials “if they would be willing to meet” with Star. The jury instructions then validated this expansive definition of “official acts.”

It is McDonnell’s position that the Fourth Circuit failed to follow the holding of the Supreme Court when the Supreme Court discussed the meaning of “official action” in United States v. Sun-Diamond Growers of California, 526 U.S. 398, 408 (1999), in which it emphasized the need to construe that phrase narrowly lest it criminalize routine conduct.

McDonnell asks the Supreme Court to consider whether the Fourth Circuit’s interpretation of the statutes using the “official acts” language raises “grave doubts” contending that their constitutionality as a result of the Fourth Circuit’s holding makes determining the conduct prohibited by the statutes “extremely vague” and gives “extremely broad-vesting prosecutors with unbridled discretion to choose targets from virtually every elected official.” Summarizing his position, McDonnell asserts that the Fourth Circuit’s opinion risks “arbitrary and discriminatory prosecutions” and raises the due process concerns underlying the vagueness doctrine – and is a construction of the federal corruption statutes that leaves “their outer boundaries ambiguous and involves the federal government in setting standards of disclosure and good government for local and state officials.”

Johnson v. United States (Supreme Court, June 26, 2015)

In Johnson v. United States, 135 S.Ct. 2551 (2015) the Supreme Court held that it is unconstitutional to enhance a sentence based upon the Armed Career Criminal Act’s (ACCA) “residual clause.” The ACCA imposes an increased sentence for a person with three prior convictions for violent felonies.

Justice Scalia authored the opinion which held as unconstitutionally vague the ACCA’s definition of a “violent felony” as “conduct that presents the serious potential risk of physical injury to another.”

Justice Scalia noted that the features of the residual clause conspire to make it unconstitutionally vague. Justice Scalia asked “[h]ow does one go about deciding what kind of conduct the ‘ordinary case’ of a crime involves” when, at the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise “serious potential risk” standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction. Justice Scalia further reminds that the holdings of the Supreme Court do not support the position that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp. Responding to the dissent in Johnson, Justice Scalia makes clear that the dissent’s supposed requirement of vagueness in all applications is not a requirement at all, “but a tautology: If we hold a statute to be vague, it is vague in all its applications.”

Concluding, Justice Scalia notes that it has been said that the life of the law is experience and that nine years’ experience trying to derive meaning from the residual clause convinced the Court that it had embarked upon a failed enterprise and while each of the uncertainties in the residual clause may be tolerable in isolation “their sum makes a task for [the Court] which, at best, could be only guesswork” and cautions that “invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due process.”

Hall v. State (pending decision by COA)

The portion of the child neglect statute, C.L. § 3-602.1(a)(4) & (5), challenged in Hall includes a definition of “mental injury” as one that “means the substantial impairment of minor’s mental or psychological ability to function” and “neglect” as conduct that “means the intentional failure to provide necessary assistance and resources for the physical needs or mental health of a minor that creates a substantial risk of harm to the minor’s physical health or a substantial risk of mental injury to the minor.”

Hall asserts that Maryland’s criminal neglect of a minor statute is unconstitutionally vague on its face and as applied to the particular facts of her case and that the statute is not sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, that it fails to establish minimal guidelines to govern law enforcement and, as a result, risks arbitrary and discriminatory enforcement. Hall notes that the circuit court, while it acknowledged that the statute “…really is a broad, awful definition of neglect,” nonetheless denied Hall’s motion to dismiss, stating that the challenge should be left to the appellate courts. In an unreported opinion in Hall the Court of Special Appeals declined to address the issue as to whether the statute is vague on its face, holding that the statute was not vague as applied to the facts of this particular case.

Summarizing her argument in her certiorari petition Hall explained that the neglect of a minor statute broadly prohibits “neglect” of a minor and in doing so, it fails to identify what conduct might qualify as neglect. The language of the statute delineates two ways in which neglect could occur: by the “intentional failure to provide necessary assistance and resources for (1) the physical needs or (2) mental health of a minor that creates a substantial risk of harm to the minor’s physical health or substantial risk of mental injury to the minor.” The statute fails to explain what “necessary assistance and resources” means, lacks a description about the “physical needs or mental health” that fall within the ambit of the statute, and offers no guidance about the meaning of “substantial risk of harm to the health” of the minor. Furthermore, although the term “mental injury” to the minor is defined in the statute as “the substantial impairment of a minor’s mental or psychological ability to function,” this definition only further obscures the meaning of “substantial risk of mental injury to the minor.” For these reasons Hall argues that the statute fails to afford persons of ordinary intelligence and experience a reasonable opportunity to know what is prohibited, so that they may govern their behavior accordingly.


Maryland Courts have looked at well-grounded principles in federal constitutional law when considering challenges relating to constitutional vagueness of statutes. Galloway v. State, 365 Md. 599, 615-16 (2001). The courts look at whether the statute gives fair notice and whether it can be enforced with legally fixed standards.

Fair notice is satisfied if “persons of ordinary intelligence and experience [are] afforded a reasonable opportunity to know what is prohibited, so that they may govern their behavior accordingly.” Williams v. State, 329 Md. 1, 8 (1992) (internal quotation marks omitted) (quoting Bowers v. State, 283 Md. 115, 121 (1978)); see also Ferro v. Lewis, 348 Md. 593, 607 (1998).

Enforcement of the statute can be accomplished when there are “legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others who obligation it is to enforce, apply and administer the penal laws.” Williams, 329 Md. at 8 (quoting Bowers, 283 Md. at 121). A statute is not unconstitutionally vague merely because it allows for the exercise of some discretion on the part of law enforcement and judicial officials. Bowers, 283 Md. at 122, see also Eanes v. State, 318 Md. 436, 464 (1990). Only when a statute is so broad as to be susceptible to irrational and selective patterns of enforcement will it be held unconstitutional. Bowers, 283 Md. at 122, Eanes, 318 Md. at 464.

The Following Statutes Are Not Unconstitutionally Vague

C.L. § 2-210 (Causing death of another by motor vehicle in criminally negligent manner): In Beattie v. State, 216 Md.App. 667 (2014), the Court of Special Appeals held that this statute was not unconstitutionally vague. The Court found that Maryland courts previously have used the terms “criminal negligence” and “gross negligence” interchangeably in the context of interpreting other statutory provisions. As to this particular statute there now exists a clear distinction between criminally negligent manslaughter and manslaughter by operating a vehicle in a grossly negligent manner. The Court found that the statute provides constitutionally sufficient guidance regarding the proscribed conduct, the statute explains the scope of criminal negligence in clear, readily understandable terms, and other courts have upheld criminally negligent homicide statutes against vagueness challenges.

Former Art. 27 § 388B, Current C.L. §3-211 (Life Threatening Injury by Motor Vehicle or Vessel while Under the Influence of Alcohol): In Todd v. State, 161 Md.App. 332, 344 (2005), the Court of Special Appeals held that the term “life-threatening injury” is neither ambiguous nor mysterious because the term can be readily and indisputably defined by reference to a dictionary. Moreover, the meaning was sufficiently clear to permit police, judicial officers, and triers of fact to enforce the statute.

Former Art. 27 § 35A(b)(7)(A), Current C.L. §3-601 (Child Abuse = Cruel or Inhumane Treatment of Minor): In Bowers v. State, 283 Md. 115, 125 (1978) the Court of Appeals upheld this statute. This case is a seminal case in Maryland that is often cited in cases analyzing whether a statute is unconstitutionally vague. The Court of Appeals determined that the terminology used in the statute was a codification of the common law principles concerning the limits of permissible parental chastisement. Thus terms like “cruel or inhuman” and “malicious” have acquired a widely accepted connotation in the law. People of common intelligence need not guess at its meaning or speculate as to its application. Corporal discipline for the purpose of punishment or correction does not subject parents to the statute, however, when parents cross the line and physical injury is intentionally and maliciously or cruelly inflicted then the conduct becomes criminal. Bowers points out that the statute does not invite selective or discriminatory application by law enforcement because there are clear lines between the kinds of corporal punishment that are criminal and those that are not.

C.L. § 3-602 (Sexual Exploitation of a Minor): In Walker v. State, 432 Md. 587 (2013), Walker argued that the definition of sexual exploitation is void for vagueness and fails to provide notice as to what type of conduct is prohibited under C.L. § 3-602. The Court of Appeals did not find the statute vague. “Although §3-602 uses broad language, it strikes a careful compromise between the need for specificity and the desire of lawmakers to craft a statute that can target the ever-shifting manner in which some people will target and abuse children.” Id. at 627. Walkers actions in this case fell within the rubric of sexual exploitation and there was evidence that he was sufficiently aware of the wrongful nature of his actions: he told the child to destroy all of the notes he had given her, acknowledged it was wrong for him to love her, and expressed a fear that she would view him as “weird”‘ or a “perverted child psycho stalker” and these are not the words of a man who believes his conduct is entirely innocent and devoid of criminal consequences.

Former Art. 27 § 268H, Current C.L. § 3-607 (Hazing): In McKenzie v. State, 131 Md.App. 124, 137 (2000), the Court of Special Appeals upheld Maryland’s anti-hazing statute which defined “haze” as “doing an act or causing any situation which recklessly or intentionally subject a student to the risk of serious bodily injury for the purpose of initiation into a student organization of a school, college, or university.” The Court found that it would have been an impossible task if the legislature had attempted to define hazing specifically because organizations have never suffered for ideas in contriving new forms of hazing. Students in Maryland can envision what is meant by “haze.”

Former Art. 27 § 123(c), Current C.L. § 3-803(a)(1) (Harassment): In Galloway v. State, 365 Md. 599 (2001), the Court of Appeals upheld the provision of the code which prohibited a person from “follow[ing] another person in or about a public place or maliciously engag[ing] in a course of conduct that alarms or seriously annoys another person…[w]ith intent to harass, alarm, or annoy the other person.” The statute has inherent limitations requiring a reasonable warning to desist, it does not apply to any peaceable activity intended to express political views or provide information to others, and it mandates that there be no legal purpose for the activity. Id. at 619. The terms “annoy,” “alarm,” and “harass” are commonly understood by ordinary people and thus provide fair notice. Id. at 627. Additionally, the statute has a specific intent requirement that while alone it may not be able to save a statute from constitutional infirmity, it can help ameliorate vagueness problems because an actor with a specific intent is presumed to be on notice that his actions constitute a crime. Id. at 632.

Former Art. 27 § 374, Current C.L. § 4-405 (Possession of Machine Gun for Offensive or Aggressive Purposes): In Boyer v. State, 107 Md.App. 32 (1995), the Court of Special Appeals found that this statute was not void for vagueness. The statute expressly punished those who specifically intended to use or possess a machine gun for an aggressive or offensive purpose. This “can in no way be ‘a trap for those who act in good faith.'” Furthermore, “aggressive” and “offensive” are not technical terms but have common meanings.

Former Art. 27 § 286(g), Current C.L. § 5-613(a) (Drug Kingpin): In Williams v. State, 329 Md. 1, 8 (1992), the Court of Appeals upheld this statute which prohibited persons from being drug kingpins and defined “drug kingpin” as an “organizer, supervisor, financier, or manager” in a drug conspiracy. The Court ruled that these words are not technical terms but are common words with well understood meanings and thus employ language accessible to persons of common intelligence. The Court instructed that the statute makes clear that those who occupy positions of importance in drug conspiracies will be subject to heightened punishment and that the statute does not foster selective prosecution since the terms are as plain to law enforcement officials as to the general public.

Former Art. 27 § 233D, Current C.L. § 8-404 (Pyramid Promotional Schemes): In Schrader v. State, 69 Md.App. 377 (1986) Schrader contended that this statute is unconstitutionally vague as applied to him based on the definition of “pyramid promotional scheme” in subsection (a)(4). The Court of Special Appeals looked first at the fair notice requirement, and found that the word in issue “primarily” possesses a common and generally accepted meaning. The Court then looked at the enforcement aspect and found that “primarily” is an adequate benchmark for enforcement of the statute and evaluation of prosecutions brought or its violations.

C.L. § 8-611 (Trademark Counterfeiting): In McCree v. State, 441 Md. 4 (2014), the Court of Appeals held that the statute prohibiting the willful display of items having retail value and bearing a counterfeit mark was not facially void for vagueness. The counterfeit mark was defined as an unauthorized copy of intellectual property, and intellectual property was defined as something that was adopted or used by a person to identify the person’s goods or services. The McCree court concluded that Criminal Law Article § 8-611 is not facially void-for-vagueness because the statute is well defined with sub-definitions and there is no need to guess at the statute’s meaning or its application. Id. at 21.

C.L. § 9-303 (Threaten to Harm): In Parker v. State, 189 Md.App. 474 (2009) the Court of Special Appeals found that this statute is not unconstitutionally vague. The words “threaten to harm” are unambiguous in the context of the statute, the purpose of the law is plain: to enable individuals to report criminal activity or participate in official proceedings without fear they will be retaliated against for doing so. The phrase “threaten to harm another” has “a common and generally accepted meaning,” the law clearly applies to the facts in the case where a police officer who investigated a crime and testified in a trial leading to a conviction was told by an associate of the convicted person in an angry voice “now that you fucked with my family, I’ll be fucking with yours…Yes, you ruined my family, so I’ll ruin yours” and the comment was made directly outside the courthouse within minutes after the jury’s verdict had been returned – there is no question that “I’ll be fucking with your [family]” would be perceived by a witness as a retaliatory threat of harm.

Former Art. 27 § 121, Current C.L. § 10-201(c)(5) (Loud and Unseemly Noises as Disorderly Conduct): In Eanes v. State, 318 Md. 436, 461 (1990), the Court of Appeals upheld this statute which prohibited “loud and unseemly noises” as disorderly conduct. The Court held that the words “loud and unseemly” give sufficient notice of what conduct is penalized: “unreasonably loud in the circumstances.” Id. at 461. Further, this provision ordinarily requires prior warning by police authority so that the speaker is made aware that further communication at the offensive volume level may subject the individual to prosecution. Id. There is no arbitrary or discriminatory enforcement. It can be enforced to limit protected speech to the extent the speaker’s actions are willful, the volume clearly exceeds what is necessary to address passersby, and the noise is actually disruptive to the “captive” audience in the neighborhood. Id. at 464. Police may act under this statute only upon receipt of a complaint from an affected citizen upon the basis of which the officer reasonably believes that the statute has been violated and that guards against oppressive action initiated solely by government opposition to unwelcome speech.

C.P. § 11-705(d) & 11-721 (Sex Offender Registration): In Jeandell v. State, 165 Md.App. 26 (2005), rev’d on other grounds, the Court of Special Appeals held that the change of residence notification statutes were not void for vagueness as applied to homeless offenders. There was fair notice in § 11-705 since it requires all registrants who change residences to send written notice of the change to the Department within 7 days after the change occurs. Thus homeless registrants are not required to know in advance where they will be moving. “Residence” is a word with a common meaning and even a homeless person must live someplace. Thus, this is not an impossible requirement for homeless registrants to meet

Cts. & Jud. Proc. § 12-702(b) (Enhancement of Sentencing after Retrial): In Phillips v. State, 219 Md.App. 624 (2014), the Court of Special Appeals did not find that statute was unconstitutionally applied to the circumstances of the case. It noted that this statute was crafted in response to a Supreme Court case in which the defendant received a harsher sentence after a retrial than he had received at the first trial. The Supreme Court laid out requirements that must be present before increasing a sentence. In response to this ruling Maryland enacted Ct.s. & Jud. Proc. § 12-702(b) deriving language directly from the Supreme Court’s decision. Taking into consideration that the General Assembly intended the statute to conform to the intent and requirements of the Supreme Court case and that case clearly enumerated that a correctional disciplinary record and a defendant’s conduct while incarcerated are types of conduct that may be considered, the statute was not applied unconstitutionally.

H.G.§ 18-325(b)(1) (Disorderly Manner): In Livingston v. State, 192 Md.App. 553 (2010), the Court of Special Appeals held that the statutory provision at issue was not vague under the fair notice principle, nor did it fail to provide legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation is to enforce, apply and administer the penal laws. There the statute required that “[w]hile an individual is in any placement for tuberculosis treatment, the individual may not: (1) behave in a disorderly manner.” The Court then stated that there is a common and generally accepted meaning to the phrase “disorderly manner” that can be fairly ascertained. In Livingston the definition of “disorderly” had to be considered in the context of a treatment facility for tuberculosis where the purpose of the statute would have been to prevent and control the spread of tuberculosis.

Common Law Misconduct In Office: In Leopold v. State, 216 Md.App. 586 (2014), the Court of Special Appeals held that the common law misdemeanor crime for misconduct in office was not unconstitutionally vague as applied to Leopold who based upon the trial court’s findings, while serving as county executive, directed his staff to perform campaign duties for him, in knowing violation of law, such as placing and retrieving campaign signs, collecting campaign donations, and collecting dossiers on opponents and other persons, who demanded that officers and an administrative assistant personally attend to his catheter bag, which was not within the scope of their job description, and who placed officers and assistant in position where they felt they could not refuse his demands.

COMAR (Outgoing Mail of an Inmate): In McFarlin v. State, 409 Md. 391 (2009), the Court of Appeals upheld the Court of Special Appeals’ conclusion that COMAR is not unconstitutionally vague. That provision regulates outgoing mail of an inmate within the Department of Corrections observing that it is fairly ascertainable that clear evidence relates to security and safety matters, as MCAC is a high security penal institution and because the provision specifically applies only to inmates’ outgoing mail, the regulation is not so broad that it is likely to be interpreted irrationally.

Baltimore City Code, art. 19 § 60-5(b)(8) (2011) (Gun Offender Registry Requirements): In State v. Phillips, 210 Md.App. 239 (2013) the circuit court dismissed the charge finding that this statute was vague. The Court of Special Appeals found error noting that Phillips was not charged with failing to give “other information” requested by the police, but rather, he was charged with failing to appear to re-register, as required and thus the Act is not impermissibly vague as applied to his conduct. The Act as a whole is not unconstitutionally vague since the Act sets forth specific information that a gun offender must provide as well as “any other information required by the rules and regulations adopted by the Police Commissioner under this subtitle.” If no regulations are filed, the gun offender is required to give only the listed information. If regulations are filed, there are ways for a gun offender to determine what information will be required upon registration. Lastly, even if § 60-5(b)(8) was unconstitutionally vague, dismissal of the charges would not be warranted because only that provision would be severed and the remainder of the statute would remain.

The Following Statutes Are Unconstitutionally Vague

Former Baltimore City Code, Art. 19, § 9(a)(5) (Burglar tools): In Re Leroy T., 285 Md. 508 (1979), a juvenile was arrested while allegedly trying to break into a car and was accused of, and adjudicated delinquent for, the possession of a burglary tool, in his case a pair of pliers. The code prohibited the possession of any “device, instrument, or article commonly used, designed or specially adopted for criminal use.” The Court of Appeals concluded that “almost any common article or instrument imaginable, which might be used by person in the course of committing unlawful acts, would be encompassed by § 9(a)(5) and thus was unconstitutionally vague.” Id. at 512-513.

Former Frederick City Code § 15-10 (Curfew for juveniles): In Ashton v. Brown, 339 Md. 70 (1995), a Frederick City Ordinance established a curfew for juveniles who were not accompanied by adults, and created a variety of exceptions, including one for any “child attending a cultural, scholastic, athletic or recreational activity supervised by a bona fide organization.” In that case a group of teenagers who were arrested after attending a youth-oriented event sponsored by a local Chinese restaurant, and who were later found guilty of violating the curfew, challenged the constitutionality of the ordinance. The Court of Appeals invalidated the ordinance because it failed to clearly define which organizations were to be considered “bona fide.” Id. at 89. The Court stated: “It must be possible for citizens to decide whether an unaccompanied seventeen year old might be detained in Frederick under the curfew ordinance for attending a midnight church service, a baseball game that ran into extra innings, a concert at Hood College, or a move that ended after eleven.”

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