vagueness challenge in Colorado

2016Statutes must be drafted to be both sufficiently specific to give fair warning of prohibited conduct and sufficiently general to address the “essential problem under varied circumstances and during changing times.” Id. (quoting Colo. Auto. & Truck Wreckers Ass’n v. Dep’t of Revenue , 618 P.2d 646, 651 (Colo. 1980)). ¶16       “Ultimately, the degree of vagueness tolerated by the Constitution, and the level of scrutiny a court must use in reviewing a vagueness challenge, depend on the nature of the enactment being challenged.” Id. “Where, as here, a statute does not burden

2016Statutes must be drafted to be both sufficiently specific to give fair warning of prohibited conduct and sufficiently general to address the “essential problem under varied circumstances and during changing times.” Id. (quoting Colo. Auto. & Truck Wreckers Ass’n v. Dep't of Revenue, 618 P.2d 646, 651 (Colo.1980)). ¶ 16 “Ultimately, the degree of vagueness tolerated by the Constitution, • and the level of scrutiny a court must use in reviewing a vagueness- challenge, depend on the nature of the enactment being challenged.” Id. ‘Where, as here, a statute does not burden protected speech, the con

2015Applicable Law ¶20       “The vagueness doctrine is rooted in the right to due process of law, which requires that a law provide ‘fair notice of the conduct that has been determined to be unlawful.’” People v. Shell , 148 P.3d 162, 172 (Colo. 2006) (quoting Smith v. Charnes , 728 P.2d 1287, 1290 (Colo. 1986)). “Thus a law offends due process if ‘it does not provide fair warning of the conduct prohibited or if its standards are so ill-defined as to create a danger of arbitrary and capricious enforcement.’” Id. (quoting Parrish v. Lamm , 758 P.2d 1356, 1367 (Colo. 1988));

2015Applicable Law ¶20       “The vagueness doctrine is rooted in the right to due process of law, which requires that a law provide ‘fair notice of the conduct that has been determined to be unlawful.’” People v. Shell , 148 P.3d 162, 172 (Colo. 2006) (quoting Smith v. Charnes , 728 P.2d 1287, 1290 (Colo. 1986)). “Thus a law offends due process if ‘it does not provide fair warning of the conduct prohibited or if its standards are so ill-defined as to create a danger of arbitrary and capricious enforcement.’” Id. (quoting Parrish v. Lamm , 758 P.2d 1356, 1367 (Colo. 1988));

2016Statutes must be drafted to be both sufficiently specific to give fair warning of prohibited conduct and sufficiently general to address the “essential problem under varied circumstances and during changing times.” Id. (quoting Colo. Auto. & Truck Wreckers Ass’n v. Dep't of Revenue, 618 P.2d 646, 651 (Colo.1980)). ¶ 16 “Ultimately, the degree of vagueness tolerated by the Constitution, • and the level of scrutiny a court must use in reviewing a vagueness- challenge, depend on the nature of the enactment being challenged.” Id. ‘Where, as here, a statute does not burden protected speech, the con

2016Statutes must be drafted to be both sufficiently specific to give fair warning of prohibited conduct and sufficiently general to address the “essential problem under varied circumstances and during changing times.” Id. (quoting Colo. Auto. & Truck Wreckers Ass’n v. Dep't of Revenue, 618 P.2d 646, 651 (Colo.1980)). ¶ 16 “Ultimately, the degree of vagueness tolerated by the Constitution, • and the level of scrutiny a court must use in reviewing a vagueness- challenge, depend on the nature of the enactment being challenged.” Id. ‘Where, as here, a statute does not burden protected speech, the con

2002See, e.g., People v. Aalbu, 696 P.2d 796 (Colo.1985); People v. Sequin, 199 Colo. 381, 388 , 609 P.2d 622, 627 (1980)(“The vagueness test is not an exercise in semantics to emasculate legislation; rather, it is a pragmatic test to ensure fairness.”).

2002See, e.g., People v. Aalbu, 696 P.2d 796 (Colo.1985); People v. Sequin, 199 Colo. 381, 388 , 609 P.2d 622, 627 (1980)(“The vagueness test is not an exercise in semantics to emasculate legislation; rather, it is a pragmatic test to ensure fairness.”).

1984See Americans United v. State, 648 P.2d 1072, 1086 (Colo.1982); People v. Garcia, 197 Colo. 550, 554 , 595 P.2d 228, 231 (1979) (“The vagueness doctrine is not an exercise in semantics to emasculate legislation; rather, it is a pragmatic means to ensure fairness.”). 9 .

1984See Americans United v. State, 648 P.2d 1072, 1086 (Colo.1982); People v. Garcia, 197 Colo. 550, 554 , 595 P.2d 228, 231 (1979) (“The vagueness doctrine is not an exercise in semantics to emasculate legislation; rather, it is a pragmatic means to ensure fairness.”). 9 .

2016Holder v. Humanitarian Law Project, 561 U.S. 1 , 18–19 (2010); Flipside, 455 U.S. at 495 ; Parker v. Levy, 417 U.S. 733, 757 (1974) (a statute must be examined in light of the conduct with which a defendant is charged).

2016See Holder, 561 U.S. at 18; Flipside, 455 U.S. at 497 .

2016See, e.g., People v. Chastain, 733 P.2d 1206, 1210 (Colo. 1987) (“The doctrines of overbreadth and vagueness are distinct . . . a statute may be clear yet may sweep too broadly and invade constitutionally protected freedoms.”); Erwin Chemerinsky, Constitutional Law: Principles and Policies § 11.2.2, at 977–78 (4th ed. 2011) (giving examples of laws that are overbroad but not vague and vice versa); Rich, supra, § 7:6 n.1 (noting that a vague statute that reaches only unprotected conduct may nonetheless violate due process principles); see also Holder, 561 U.S. at 19 (correcting a lower court fo

2016See, e.g., People v. Chastain, 733 P.2d 1206, 1210 (Colo. 1987) (“The doctrines of overbreadth and vagueness are distinct . . . a statute may be clear yet may sweep too broadly and invade constitutionally protected freedoms.”); Erwin Chemerinsky, Constitutional Law: Principles and Policies § 11.2.2, at 977–78 (4th ed. 2011) (giving examples of laws that are overbroad but not vague and vice versa); Rich, supra, § 7:6 n.1 (noting that a vague statute that reaches only unprotected conduct may nonetheless violate due process principles); see also Holder, 561 U.S. at 19 (correcting a lower court fo

2016See People v. Perea , 74 P.3d 326, 332 (Colo. App. 2002). ¶28 We apply familiar principles of statutory interpretation in analyzing a vagueness challenge.

2016See People v. Perea, 74 P.3d 326, 332 (Colo. App. 2002). ¶ 28 We apply familiar principles of statutory interpretation in analyzing a vagueness challenge.

2015Applicable Law ¶20 “The vagueness doctrine is rooted in the right to due process of law, which requires that a law provide ‘fair notice of the conduct that has been determined to be unlawful.’” People v. Shell , 148 P.3d 162, 172 (Colo. 2006) (quoting Smith v. Charnes , 728 P.2d 1287, 1290 (Colo. 1986)).

2015Applicable Law ¶20       “The vagueness doctrine is rooted in the right to due process of law, which requires that a law provide ‘fair notice of the conduct that has been determined to be unlawful.’” People v. Shell , 148 P.3d 162, 172 (Colo. 2006) (quoting Smith v. Charnes , 728 P.2d 1287, 1290 (Colo. 1986)). “Thus a law offends due process if ‘it does not provide fair warning of the conduct prohibited or if its standards are so ill-defined as to create a danger of arbitrary and capricious enforcement.’” Id. (quoting Parrish v. Lamm , 758 P.2d 1356, 1367 (Colo. 1988));

2015Applicable Law ¶20       “The vagueness doctrine is rooted in the right to due process of law, which requires that a law provide ‘fair notice of the conduct that has been determined to be unlawful.’” People v. Shell , 148 P.3d 162, 172 (Colo. 2006) (quoting Smith v. Charnes , 728 P.2d 1287, 1290 (Colo. 1986)). “Thus a law offends due process if ‘it does not provide fair warning of the conduct prohibited or if its standards are so ill-defined as to create a danger of arbitrary and capricious enforcement.’” Id. (quoting Parrish v. Lamm , 758 P.2d 1356, 1367 (Colo. 1988));

2015Applicable Law ¶20       “The vagueness doctrine is rooted in the right to due process of law, which requires that a law provide ‘fair notice of the conduct that has been determined to be unlawful.’” People v. Shell , 148 P.3d 162, 172 (Colo. 2006) (quoting Smith v. Charnes , 728 P.2d 1287, 1290 (Colo. 1986)). “Thus a law offends due process if ‘it does not provide fair warning of the conduct prohibited or if its standards are so ill-defined as to create a danger of arbitrary and capricious enforcement.’” Id. (quoting Parrish v. Lamm , 758 P.2d 1356, 1367 (Colo. 1988));

1988E.g., People v. Jennings, 641 P.2d 276, 278 (Colo.1982); People v. Thatcher, 638 P.2d 760, 765 (Colo.1981).

1988E.g., People v. Jennings, 641 P.2d 276, 278 (Colo.1982); People v. Thatcher, 638 P.2d 760, 765 (Colo.1981).

2023While these challenges may sometimes overlap, the underlying rights protect different interests and raise different concerns. ¶24 The vagueness doctrine arises out of the Fifth Amendment’s Due Process Clause and provides that a statute is unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” People v. Graves, 2016 CO 15, ¶ 17 , 368 P.3d 317, 324 (quoting United States v. Williams, 553 U.S. 285, 304 (2008)).

2016Thus, a conviction fails to comport with due process where it is obtained under a statute that is so vague that it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Williams, 553 U.S. at 304 ; Baer, 973 P.2d at 1233 . ¶18 The degree of vagueness tolerated depends on the nature of the enactment; where the statute threatens to inhibit speech or expressive conduct protected by the First Amendment, the vagueness doctrine demands a greater degree of specificity.

2017The court upheld the statute's constitutionality on the vagueness challenge, concluding that "the statute by the plain meaning of its terms requires the defendant to have ... the specific intent to retaliate or to seek retribution against a person protected by the statute because of that person's relationship to a criminal proceeding." 988 P.2d at 645 .

2016Id. “If the statute survives a facial challenge, a litigant may succeed on a vagueness claim only by demonstrating that the statute is impermissibly vague as applied to him or her.” Baer , 973 P.2d at 1233 .

2025“Thus, the vagueness doctrine requires that a criminal statute ‘be framed with sufficient clarity to alert all who are subject to its sanctions to the nature of the proscribed behavior and to inform them of permissible standards of conduct, that they may conduct themselves accordingly.’” McCoy v. People, 2019 CO 44, ¶ 60 , 442 P.3d 379, 392 (quoting People v. Randall, 711 P.2d 689, 691 (Colo. 1985)). 27 ¶ 69 But “neither scientific nor mathematical exactitude in legislative draftsmanship” is required.

2019Thus, the vagueness doctrine requires that a criminal statute "be framed with sufficient clarity to alert all who are subject to its sanctions to the nature of the proscribed behavior and to inform them of permissible standards of conduct, that they may conduct themselves accordingly." People v. Randall , 711 P.2d 689 , 691 (Colo. 1985). ¶83 Here, given the breadth of the majority's construction of the phrase "person involved," I fear that those subject to the statute can no longer know what conduct the statute will now be deemed to cover. ¶84 Finally, I am concerned that the majority's constr

1975Further, where certain constitutional freedoms are potentially inhibited, the vagueness doctrine may require an especially demanding degree of specificity. *350 Smith v. Goguen, 415 U.S. 566 , 94 S.Ct. 1242 , 39 L.Ed.2d 605 (1974); People v. District Court, 185 Colo. 78 , 521 P.2d 1254 (1974).

1975Further, where certain constitutional freedoms are potentially inhibited, the vagueness doctrine may require an especially demanding degree of specificity. *350 Smith v. Goguen, 415 U.S. 566 , 94 S.Ct. 1242 , 39 L.Ed.2d 605 (1974); People v. District Court, 185 Colo. 78 , 521 P.2d 1254 (1974).

2016Holder v. Humanitarian Low Project, 561 U.S. 1, 18-19 , 130 S.Ct. 2705 , 177 L.Ed.2d 355 (2010); Flipside, 455 U.S. at 495 , 102 S.Ct. 1186 ; Parker v. Levy, 417 U.S. 733, 757 , 94 S.Ct. 2547 , 41 L.Ed.2d 439 (1974) (a statute must be examined in light of the conduct with which a defendant is charged).

2016Holder v. Humanitarian Law Project, 561 U.S. 1 , 18–19 (2010); Flipside, 455 U.S. at 495 ; Parker v. Levy, 417 U.S. 733, 757 (1974) (a statute must be examined in light of the conduct with which a defendant is charged).

2011Stamm v. City & County of Denver, 856 P.2d 54, 56 (Colo.App.1993). "[Glenerality is not the equivalent of vagueness, and ... terms used need not be defined with mathematical precision in order to withstand a vagueness challenge." Id.

2011Stamm v. City & County of Denver, 856 P.2d 54, 56 (Colo.App.1993). "[Glenerality is not the equivalent of vagueness, and ... terms used need not be defined with mathematical precision in order to withstand a vagueness challenge." Id.

2016Thus, a conviction fails to comport with due process where it is obtained under a statute that is so vague that it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Williams, 553 U.S. at 304 ; Baer, 973 P.2d at 1233 . ¶18 The degree of vagueness tolerated depends on the nature of the enactment; where the statute threatens to inhibit speech or expressive conduct protected by the First Amendment, the vagueness doctrine demands a greater degree of specificity.

2016“If the statute survives a facial challenge, a litigant may succeed on a vagueness claim only by demonstrating that the statute is impermissibly vague as applied to him or her.” Baer , 973 P.2d at 1233 .

2024Torline, ¶ 8. ¶ 27 To prevail on a vagueness challenge the defendant must show that the statute “forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess 9 as to its meaning and differ as to its application.” Devorss, 277 P.3d at 835 (quoting People v. Gross, 830 P.2d 933, 937 (Colo. 1992)).

1999There, in response to a similar vagueness challenge, the Supreme Court stated: “We believe that persons are able to evaluate whether an object is capable of inflicting cutting, stabbing, or tearing wounds so that it is capable of being used as an instrument of offensive or defensive combat, i.e., a weapon.” People v. Gross, supra, 830 P.2d at 938 .

2023While these challenges may sometimes overlap, the underlying rights protect different interests and raise different concerns. ¶24 The vagueness doctrine arises out of the Fifth Amendment’s Due Process Clause and provides that a statute is unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” People v. Graves, 2016 CO 15, ¶ 17 , 368 P.3d 317, 324 (quoting United States v. Williams, 553 U.S. 285, 304 (2008)).

2021Graves , ¶ 18 , 368 P.3d at 324 . ¶24 Because the prohibition against vagueness turns on whether the challenged law provides adequate notice, a vagueness challenge fails "where reasonable persons would know that their conduct puts them at risk." Id. at ¶ 19 , 368 P.3d at 325 .

2010After describing the less strict test as set forth in Flipside, Parrish states that "(tlo succeed in a vagueness challenge, the complaining party must show that the statute is impermissibly vague in all of its applications." 758 P.2d at 1367 ; see also High Gear & Toke Shop v. Beacom, 689 P.2d 624, 631 (Colo.1984) (citing Flipside and stating that since the statute at issue does not inhibit the exercise of constitutionally protected conduct, the appellants must demonstrate that the law is impermissibly vague in all of its applications).

1989Flipside, 455 U.S. at 498-99 , 102 S.Ct. at 1193-94 ; Parrish v. Lamm, 758 P.2d 1356, 1366 (Colo.1988); High Gear, 689 P.2d at 631 .

1991See United States v. Powell, 423 U.S. 87 , 96 S.Ct. 316 , 46 L.Ed.2d 228 (1975).

1991See United States v. Powell, 423 U.S. 87 , 96 S.Ct. 316 , 46 L.Ed.2d 228 (1975).

1983See People v. Jennings, 641 P.2d 276 (Colo.1982); People in the Interest of D.A.K., 198 Colo. 11 , 596 P.2d 747 (1979).

1983We determined that the language defining child abuse as conduct which may “endanger the child’s ... health” was not unconstitutionally vague in People v. Hoehl, 193 Colo. 557 , 568 P.2d 484 (1977), and noted that “ ‘health’ is a term readily comprehended and applied by jurors.” The statutory language defining a neglected or dependent child as one “subjected ... to mistreatment or abuse” withstood a vagueness challenge in People in the Interest of D.A.K., 198 Colo. 11 , 596 P.2d 747 (1979).

2026People v. Schoondermark, 699 P.2d 411 , 12 415-16 (Colo. 1985).

1991People v. Schoondermark, 699 P.2d 411, 415-16 (Colo.1985); People v. Gross, 670 P.2d 799, 800 (Colo.1983).