void-for-vagueness doctrine in Virginia

2015The Supreme Court of the United States has recognized that a government “violates this guarantee by taking 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 it invites arbitrary enforcement.” Johnson v. United States, _ U.S. _, 135 S. Ct. 2551, 2556 (2015); accord Skilling, 561 U.S. at 402-03 (“To satisfy due process, ‘a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2]

2002“As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender , at 357.

2002The Couit of Appeals of Virginia has recognized that the void-for-vagueness doctrine “forbids the impermissible delegation of ‘basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications’.” Carter , at 584, quoting Stein , at 69, quoting Grayned , at 108-09.

1998First, a penal statute, “when measured by common understanding and practices,” must define the proscribed conduct with sufficient particularity to “warn a person as to what behavior is prohibited... ”Stein v. Commonwealth, 12 Va. App. 65, 69 , 402 S.E.2d 238, 241 (1991).

2005Although actual selective enforcement of a statute might give rise to an equal protection challenge, see id. at 522, 592 S.E.2d at 781 , the statute itself will not be struck down as unconstitutionally vague “unless its clarity has been ‘designedly avoided so as to allow the net to be cast at large.’ ” Id. at 520 , 592 S.E.2d at 781 (quoting Papachristou v. City of Jacksonville, 405 U.S. 156, 166 , 92 S.Ct. 839, 845 , 31 L.Ed.2d 110 (1972)). 6 Put simply, the void-for-vagueness test “forbids [ ] a law that, by its expansive sweep of language, enacts an elastic definition of illegality—one that

2005Although actual selective enforcement of a statute might give rise to an equal protection challenge, see id. at 522, 592 S.E.2d at 781 , the statute itself will not be struck down as unconstitutionally vague “unless its clarity has been ‘designedly avoided so as to allow the net to be cast at large.’ ” Id. at 520 , 592 S.E.2d at 781 (quoting Papachristou v. City of Jacksonville, 405 U.S. 156, 166 , 92 S.Ct. 839, 845 , 31 L.Ed.2d 110 (1972)). 6 Put simply, the void-for-vagueness test “forbids [ ] a law that, by its expansive sweep of language, enacts an elastic definition of illegality—one that

2002The Couit of Appeals of Virginia has recognized that the void-for-vagueness doctrine “forbids the impermissible delegation of ‘basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications’.” Carter , at 584, quoting Stein , at 69, quoting Grayned , at 108-09.

1994In Grayned v. City of Rockford, 408 U.S. 104 (1972), the Supreme Court of the United States explained that: [criminal] laws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. ...

2005Tjan also argues, however, that Code § 18.2-361 is void for vagueness because the statute “is subjectively enforced only against homosexuals.” In the context of a void-for-vagueness challenge, however, a statute will be declared *710 unconstitutional only if the statutory language “ ‘authorizes or encourages arbitrary and discriminatory enforcement.’ ” Boyd, 42 Va.App. at 520 , 592 S.E.2d at 780 -81 (quoting Hill v. Colorado, 530 U.S. 703, 732 , 120 S.Ct. 2480, 2498 , 147 L.Ed.2d 597 (2000)).

2005Tjan also argues, however, that Code § 18.2-361 is void for vagueness because the statute “is subjectively enforced only against homosexuals.” In the context of a void-for-vagueness challenge, however, a statute will be declared *710 unconstitutional only if the statutory language “ ‘authorizes or encourages arbitrary and discriminatory enforcement.’ ” Boyd, 42 Va.App. at 520 , 592 S.E.2d at 780 -81 (quoting Hill v. Colorado, 530 U.S. 703, 732 , 120 S.Ct. 2480, 2498 , 147 L.Ed.2d 597 (2000)).

2005Thus, the doctrine “ ‘protects two due process interests,’ ” first, requiring “ ‘that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he *708 may act accordingly,’” and second, “prevent[ing] arbitrary and discriminatory enforcement by requiring that laws ... provide explicit standards to those who apply them.’ ” Parker v. Commonwealth, 24 Va.App. 681, 687 , 485 S.E.2d 150, 153 (1997) (quoting Coleman v. City of Richmond, 5 Va.App. 459, 466 , 364 S.E.2d 239, 243 (1988)) (internal quotations omitted) (omission in original).

2005Thus, the doctrine “ ‘protects two due process interests,’ ” first, requiring “ ‘that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he *708 may act accordingly,’” and second, “prevent[ing] arbitrary and discriminatory enforcement by requiring that laws ... provide explicit standards to those who apply them.’ ” Parker v. Commonwealth, 24 Va.App. 681, 687 , 485 S.E.2d 150, 153 (1997) (quoting Coleman v. City of Richmond, 5 Va.App. 459, 466 , 364 S.E.2d 239, 243 (1988)) (internal quotations omitted) (omission in original).

2024“We review questions of statutory constitutionality de novo,” Toghill v. Commonwealth, 289 Va. 220 , 227 (2015), including “a facial constitutional challenge” based on the void-for-vagueness doctrine, Shin v. Commonwealth, 294 Va. 517, 526 (2017).

2024“When a party makes a vagueness challenge, he generally cannot argue vagaries in aspects of the challenged law that do not directly affect him—a legal claim often called a ‘facial challenge.’” Roberts v. Va. State Bar, 296 Va. 105, 123 (2018) (collecting cases).

2018See, e.g. , United States v. Williams , 553 U.S. 285 , 306, 128 S.Ct. 1830 , 170 L.Ed.2d 650 (2008) (acknowledging the invalidity of criminal statutes creating "wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings " but finding "no such indeterminacy" in the statute at issue (emphasis added) ); Gray v. Commonwealth , 260 Va. 675 , 680-81, 537 S.E.2d 862 (2000) (relying on "the context of this case" to find the terms of a statute not void for vagueness); Bell v. Dorey Elec.

2018See, e.g. , United States v. Williams , 553 U.S. 285 , 306, 128 S.Ct. 1830 , 170 L.Ed.2d 650 (2008) (acknowledging the invalidity of criminal statutes creating "wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings " but finding "no such indeterminacy" in the statute at issue (emphasis added) ); Gray v. Commonwealth , 260 Va. 675 , 680-81, 537 S.E.2d 862 (2000) (relying on "the context of this case" to find the terms of a statute not void for vagueness); Bell v. Dorey Elec.

2015The Supreme Court of the United States has recognized that a government “violates this guarantee by taking 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 it invites arbitrary enforcement.” Johnson v. United States, _ U.S. _, 135 S. Ct. 2551, 2556 (2015); accord Skilling, 561 U.S. at 402-03 (“To satisfy due process, ‘a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2]

2015The Supreme Court of the United States has recognized that a government “violates this guarantee by taking 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 it invites arbitrary enforcement.” Johnson v. United States, _ U.S. _, 135 S. Ct. 2551, 2556 (2015); accord Skilling, 561 U.S. at 402-03 (“To satisfy due process, ‘a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2]

2015“The prohibition of vagueness in criminal statutes ‘is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,’ and a statute that flouts it ‘violates the first essential of due process’.” Johnson, 135 S. Ct. at 2557 (quoting Connally v. General Constr.

2008See Tjan v. Commonwealth, 46 Va. App. 698 , 710 n.6, 621 S.E.2d 669 , 674 n.6 (2005) (“In a void-for-vagueness challenge, the overriding inquiry is whether the statutory language is so vague that, of necessity, police must use their discretion when determining whether the statute is being violated, thus creating an unacceptable risk of selective 3 For a legislative history of Code § 18.2-308.4, see Taylor v. Commonwealth, 44 Va. App. 179, 182-84 , 604 S.E.2d 103, 104-05 (2004).

2008See Tjan v. Commonwealth, 46 Va. App. 698 , 710 n.6, 621 S.E.2d 669 , 674 n.6 (2005) (“In a void-for-vagueness challenge, the overriding inquiry is whether the statutory language is so vague that, of necessity, police must use their discretion when determining whether the statute is being violated, thus creating an unacceptable risk of selective 3 For a legislative history of Code § 18.2-308.4, see Taylor v. Commonwealth, 44 Va. App. 179, 182-84 , 604 S.E.2d 103, 104-05 (2004).

2008See Tjan v. Commonwealth, 46 Va. App. 698 , 710 n.6, 621 S.E.2d 669 , 674 n.6 (2005) (“In a void-for-vagueness challenge, the overriding inquiry is whether the statutory language is so vague that, of necessity, police must use their discretion when determining whether the statute is being violated, thus creating an unacceptable risk of selective 3 For a legislative history of Code § 18.2-308.4, see Taylor v. Commonwealth, 44 Va. App. 179, 182-84 , 604 S.E.2d 103, 104-05 (2004).

2008See Tjan v. Commonwealth, 46 Va. App. 698 , 710 n.6, 621 S.E.2d 669 , 674 n.6 (2005) (“In a void-for-vagueness challenge, the overriding inquiry is whether the statutory language is so vague that, of necessity, police must use their discretion when determining whether the statute is being violated, thus creating an unacceptable risk of selective 3 For a legislative history of Code § 18.2-308.4, see Taylor v. Commonwealth, 44 Va. App. 179, 182-84 , 604 S.E.2d 103, 104-05 (2004).

2005See Santillo, 30 Va.App. at 483 , 517 S.E.2d at 740 (“We hold that Code § 18.2-361 is not unconstitutionally vague either on its face or as applied to appellant.”).

2005See Santillo, 30 Va.App. at 483 , 517 S.E.2d at 740 (“We hold that Code § 18.2-361 is not unconstitutionally vague either on its face or as applied to appellant.”).

2005Thus, the doctrine “ ‘protects two due process interests,’ ” first, requiring “ ‘that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he *708 may act accordingly,’” and second, “prevent[ing] arbitrary and discriminatory enforcement by requiring that laws ... provide explicit standards to those who apply them.’ ” Parker v. Commonwealth, 24 Va.App. 681, 687 , 485 S.E.2d 150, 153 (1997) (quoting Coleman v. City of Richmond, 5 Va.App. 459, 466 , 364 S.E.2d 239, 243 (1988)) (internal quotations omitted) (omission in original).

2005Thus, the doctrine “ ‘protects two due process interests,’ ” first, requiring “ ‘that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he *708 may act accordingly,’” and second, “prevent[ing] arbitrary and discriminatory enforcement by requiring that laws ... provide explicit standards to those who apply them.’ ” Parker v. Commonwealth, 24 Va.App. 681, 687 , 485 S.E.2d 150, 153 (1997) (quoting Coleman v. City of Richmond, 5 Va.App. 459, 466 , 364 S.E.2d 239, 243 (1988)) (internal quotations omitted) (omission in original).

2003Chemerinsky, supra. “A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated and persons to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others.” Chemerinsky, supra 921; see Hicks, 264 Va. at 56-59 , 563 S.E.2d at 678-80 .

2003Chemerinsky, supra. “A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated and persons to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others.” Chemerinsky, supra 921; see Hicks, 264 Va. at 56-59 , 563 S.E.2d at 678-80 .

1995This Court has further explained that *532 “[although absolute precision is not required, a law must afford a reasonable degree of certainty so that a person is not left to guess at what conduct is prohibited.” Turner v. Jackson, 14 Va.App. 423, 433 , 417 S.E.2d 881, 888 (1992).

1995This Court has further explained that *532 “[although absolute precision is not required, a law must afford a reasonable degree of certainty so that a person is not left to guess at what conduct is prohibited.” Turner v. Jackson, 14 Va.App. 423, 433 , 417 S.E.2d 881, 888 (1992).