vagueness doctrine in Massachusetts

2018With respect to arbitrary enforcement, the United States Supreme Court has observed that "the most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine-the requirement that a legislature establish minimal guidelines to govern law enforcement." Smith v. Goguen , 415 U.S. 566 , 574, 94 S.Ct. 1242 , 39 L.Ed.2d 605 (1974).

2018With respect to arbitrary enforcement, the United States Supreme Court has observed that "the most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine-the requirement that a legislature establish minimal guidelines to govern law enforcement." Smith v. Goguen , 415 U.S. 566 , 574, 94 S.Ct. 1242 , 39 L.Ed.2d 605 (1974).

2012See id.

1997Regulatory ambiguities “may be clarified by resort to the administrative process so as to cure a vagueness claim.” Brookline v. Comm'r of the Dept. of Environmental Quality Engineering, 387 Mass. 372, 378 (1982), citing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497-98 (1982).

2018"Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement," the United States Supreme Court has recognized "that the more important aspect of the vagueness doctrine 'is not actual notice, but the other principal element of the doctrine-the requirement that a legislature establish minimal guidelines to govern law enforcement." Kolender , supra at 357-358, 103 S.Ct. 1855 , quoting Smith v. Goguen , 415 U.S. 566 , 574, 94 S.Ct. 1242 , 39 L.Ed.2d 605 (1974).

2006L. c. 269, §§ 1, 2, must meet “the more important aspect of the vagueness doctrine . . . [and a] principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.” Kolender v. Lawson, 461 U.S. 352, 358 (1983), quoting from Smith v. Goguen, 415 U.S. 566, 574 (1974).

2002In Grayned v. Rockford, 408 U.S. 104 , 108-109 (1972), the Supreme Court set forth three factors to consider in determining whether regulations, as here, survive the vagueness challenge. 7 Commonwealth v. Gallant, 373 Mass. 577, 579-580 (1977).

1988The vagueness doctrine, however, “is not a counsel of perfection.” Commonwealth v. Gallant, 373 Mass. 577, 580 (1977).

2013Commonwealth v. Orlando, 371 Mass. 732, 734 (1977) (law not vague if it requires person to conform his conduct to imprecise but comprehensible normative standard); Commonwealth v. Jarrett, 359 Mass. 491, 496-497 (1971) (uncertainty as to whether marginal offenses are included within coverage of statute does not render it unconstitutional if its scope is sufficiently definite).

2006The vagueness doctrine, in its primary sense, relates to the requirement, grounded in concepts of due process, that “[a] law is unconstitutionally vague if it is not sufficiently explicit to give clear warning as to proscribed activities.” Commonwealth v. Orlando, 371 Mass. at 734 .

1994However, “the constitutional burden imposed by the vagueness doctrine requires simply that the statute be drafted in such form as to present ‘ascertainable standards of guilt.’ ” Opinion of the Justices, supra at 827, quoting Winters v. New York, 333 U.S. 507, 515 (1948).

1991“In short, the constitutional burden imposed by the vagueness doctrine requires simply that the statute be drafted in such form as to present ‘ascertainable standards of guilt.’ Winters v. New York, 333 U.S. 507, 515 (1948).

2018In Commonwealth v. Williams , 395 Mass. 302 , 303-306, 479 N.E.2d 687 (1985), for example, we considered a due process challenge on vagueness grounds to the city of Boston's "sauntering and loitering" ordinance.

1988In order to survive a vagueness challenge, “[a] penal statute must ‘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. ’ ” Commonwealth v. Williams, 395 Mass. 302, 304 (1985), quoting from Kolender v. Lawson, 461 U.S. 352, 357 (1983).

2019Quality Eng'g , 387 Mass. 372 , 378, 439 N.E.2d 792 (1982), S .

1997Regulatory ambiguities “may be clarified by resort to the administrative process so as to cure a vagueness claim.” Brookline v. Comm'r of the Dept. of Environmental Quality Engineering, 387 Mass. 372, 378 (1982), citing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497-98 (1982).

2018See also Bohmer , 374 Mass. at 371 n.6, 372 N.E.2d 1381 (1978) ("In the context of a vagueness challenge, the defendants have no standing to assert the rights of others").

2018See also Bohmer , 374 Mass. at 371 n.6, 372 N.E.2d 1381 (1978) ("In the context of a vagueness challenge, the defendants have no standing to assert the rights of others").

2014The defendant in this case certainly “opened,” or “exposed,” his genitals and buttocks “to view” and made them “known.” We think that *238 displaying something such that it is clearly visible, even while wearing shorts of the sort worn by the defendant, fits within these definitions of “exposure.” In concluding that the defendant’s conduct fell within a common understanding of exposure and that the statute was not vague as applied to the defendant, we note that the vagueness doctrine recognizes “the practical difficulties in drawing criminal statutes both general enough to take into account a

1988But the vagueness doctrine “is not a principle designed to convert into a constitutional dilemma the practical difficulties *546 in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110 (1972).

2008Commonwealth v. Jasmin, supra (“A law is unconstitutionally vague and denies due process of law if it fails to provide a reasonable opportunity for a person of ordinary intelligence to know what is prohibited or if it does not provide explicit standards for those who apply it”).

1993See Smith v. Goguen, 415 U.S. 566, 572 (1974); Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986); Commonwealth v. Sefranka, 382 Mass. 108, 110 (1980).

2002See Custody of a Minor (No. 2), 378 Mass. 712, 716 (1979).

1989L. c. 140, § 173A (1986 ed.), we note that, simply because a law’s provisions are “civil” and not “criminal,” does not “save them from scrutiny under the vagueness doctrine.” Custody of a Minor (No. 2), 378 Mass. 712, 717 (1979).

1993See Smith v. Goguen, 415 U.S. 566, 572 (1974); Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986); Commonwealth v. Sefranka, 382 Mass. 108, 110 (1980).

1993See Smith v. Goguen, 415 U.S. 566, 572 (1974); Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986); Commonwealth v. Sefranka, 382 Mass. 108, 110 (1980).

2002In Grayned v. Rockford, 408 U.S. 104 , 108-109 (1972), the Supreme Court set forth three factors to consider in determining whether regulations, as here, survive the vagueness challenge. 7 Commonwealth v. Gallant, 373 Mass. 577, 579-580 (1977).

1980Health, 379 Mass. 70, 83-84 (1979). *926 One strand of the vagueness doctrine is that a vague law may impermissibly delegate “basic policy matters” to individuals or groups, without “explicit standards for those who apply them.” Grayned v. Rockford, 408 U.S. 104 , 108-109 (1972).

2026Moreover, in the business context, "we limit our vagueness analysis to whether [the regulation] is unconstitutionally vague as applied in this case." Caswell v. Licensing Comm'n for Brockton, 387 Mass. 864, 873 (1983) ("Since neither First Amendment [to the United States Constitution] freedoms nor criminal conduct are concerned in this case, a less stringent vagueness standard applies").

2012However, where a law does not relate to First Amendment rights or criminal conduct, “a less stringent vagueness standard applies.” Id.

2018See *564 id . at 581, 369 N.E.2d 707 , quoting from United States v. Powell , 423 U.S. 87 , 92, 96 S.Ct. 316 , 46 L.Ed.2d 228 (1975) ("[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand").

2018See *564 id . at 581, 369 N.E.2d 707 , quoting from United States v. Powell , 423 U.S. 87 , 92, 96 S.Ct. 316 , 46 L.Ed.2d 228 (1975) ("[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand").

2015See MacNutt v. Police Comm’r of Boston, 30 Mass. App. Ct. 632 , 636 n.6 (1991); Ruggiero, 18 Mass. App. Ct. at 261 n.7.

2014See Commonwealth v. Jarrett , 359 Mass, at 496 (“[M]ere difficulty in determining whether certain marginal of-fences are within the meaning of the language under attack as vague does not automatically render it unconstitutional for indefiniteness”); Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 570 (2006), quoting from Commonwealth v. Conefrey, 37 Mass. App. Ct. 290, 301-302 (1994), S.C., 420 Mass. 508 (1995) (“[A] statute is not vague merely because ‘it requires a person to conform his conduct to an imprecise but comprehensible normative standard’ ”).

2014See Commonwealth v. Jarrett , 359 Mass, at 496 (“[M]ere difficulty in determining whether certain marginal of-fences are within the meaning of the language under attack as vague does not automatically render it unconstitutional for indefiniteness”); Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 570 (2006), quoting from Commonwealth v. Conefrey, 37 Mass. App. Ct. 290, 301-302 (1994), S.C., 420 Mass. 508 (1995) (“[A] statute is not vague merely because ‘it requires a person to conform his conduct to an imprecise but comprehensible normative standard’ ”).

2014See Commonwealth v. Jarrett , 359 Mass, at 496 (“[M]ere difficulty in determining whether certain marginal of-fences are within the meaning of the language under attack as vague does not automatically render it unconstitutional for indefiniteness”); Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 570 (2006), quoting from Commonwealth v. Conefrey, 37 Mass. App. Ct. 290, 301-302 (1994), S.C., 420 Mass. 508 (1995) (“[A] statute is not vague merely because ‘it requires a person to conform his conduct to an imprecise but comprehensible normative standard’ ”).

2013Commonwealth v. Orlando, 371 Mass. 732, 734 (1977) (law not vague if it requires person to conform his conduct to imprecise but comprehensible normative standard); Commonwealth v. Jarrett, 359 Mass. 491, 496-497 (1971) (uncertainty as to whether marginal offenses are included within coverage of statute does not render it unconstitutional if its scope is sufficiently definite).

2012See United States v. Williams, 553 U.S. 285, 304 (2008).

2002Compare Champagne v. Commissioner of Correction, 395 Mass. 382, 391-393 (1985) (vagueness challenge to prison regulation that allowed superintendent or designee to disapprove of prisoner’s receipt of correspondence).