vagueness challenge in New Mexico

2021See State v. Laguna, 1999-NMCA-152, ¶ 23 , 128 N.M. 345 , 992 P.2d 896 (reviewing a void for vagueness argument about a criminal statute despite a lack of preservation); see also State v. Chavez, 2019-NMCA-068, ¶ 11 , 451 P.3d 115 (“[W]e review void[ ]for[ ]vagueness constitutional claims even when they are not preserved below.”). {24} “We review a vagueness challenge de novo in light of the facts of the case and the conduct which is prohibited by the statute.” State v. Smile, 2009-NMCA-064, ¶ 17 , 146 N.M. 525 , 212 P.3d 413 (internal quotation marks and citation omitted).

2021See State v. Laguna, 1999-NMCA-152, ¶ 23 , 128 N.M. 345 , 992 P.2d 896 (reviewing a void for vagueness argument about a criminal statute despite a lack of preservation); see also State v. Chavez, 2019-NMCA-068, ¶ 11 , 451 P.3d 115 (“[W]e review void[ ]for[ ]vagueness constitutional claims even when they are not preserved below.”). {24} “We review a vagueness challenge de novo in light of the facts of the case and the conduct which is prohibited by the statute.” State v. Smile, 2009-NMCA-064, ¶ 17 , 146 N.M. 525 , 212 P.3d 413 (internal quotation marks and citation omitted).

2021See State v. Laguna, 1999-NMCA-152, ¶ 23 , 128 N.M. 345 , 992 P.2d 896 (reviewing a void for vagueness argument about a criminal statute despite a lack of preservation); see also State v. Chavez, 2019-NMCA-068, ¶ 11 , 451 P.3d 115 (“[W]e review void[ ]for[ ]vagueness constitutional claims even when they are not preserved below.”). {24} “We review a vagueness challenge de novo in light of the facts of the case and the conduct which is prohibited by the statute.” State v. Smile, 2009-NMCA-064, ¶ 17 , 146 N.M. 525 , 212 P.3d 413 (internal quotation marks and citation omitted).

2021See State v. Laguna, 1999-NMCA-152, ¶ 23 , 128 N.M. 345 , 992 P.2d 896 (reviewing a void for vagueness argument about a criminal statute despite a lack of preservation); see also State v. Chavez, 2019-NMCA-068, ¶ 11 , 451 P.3d 115 (“[W]e review void[ ]for[ ]vagueness constitutional claims even when they are not preserved below.”). {24} “We review a vagueness challenge de novo in light of the facts of the case and the conduct which is prohibited by the statute.” State v. Smile, 2009-NMCA-064, ¶ 17 , 146 N.M. 525 , 212 P.3d 413 (internal quotation marks and citation omitted).

1978In State v. Najera, 89 N.M. 522, at 522 , 554 P.2d 983, at 983 (Ct.App. 1976) the Court of Appeals stated: The vagueness doctrine is based on notice and applies when a potential actor is exposed to criminal sanctions without a fair warning as to the nature of the proscribed activity. (citations omitted).

1978In State v. Najera, 89 N.M. 522, at 522 , 554 P.2d 983, at 983 (Ct.App. 1976) the Court of Appeals stated: The vagueness doctrine is based on notice and applies when a potential actor is exposed to criminal sanctions without a fair warning as to the nature of the proscribed activity. (citations omitted).

2019When statutes provide for sanctions, the vagueness doctrine serves two purposes: “guarantee[ing] that ordinary people have ‘fair notice’ of the conduct a statute proscribes” and “guard[ing] against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges.” Id.; accord State v. Pierce, 1990-NMSC-049 , ¶ 19, 110 N.M. 76 , 792 P.2d 408 .

2019When statutes provide for sanctions, the vagueness doctrine serves two purposes: “guarantee[ing] that ordinary people have ‘fair notice’ of the conduct a statute proscribes” and “guard[ing] against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges.” Id.; accord State v. Pierce, 1990-NMSC-049 , ¶ 19, 110 N.M. 76 , 792 P.2d 408 .

2012We analyze a claim of vagueness according to the particular facts of each case, State v. Luckie, 120 N.M. 274, 276 , 901 P.2d 205, 207 (Ct. App. 1995), and a defendant may not succeed on a vagueness claim if the statute clearly applies to the defendant’s conduct.

2012We analyze a claim of vagueness according to the particular facts of each case, State v. Luckie, 120 N.M. 274, 276 , 901 P.2d 205, 207 (Ct. App. 1995), and a defendant may not succeed on a vagueness claim if the statute clearly applies to the defendant’s conduct.

2023A vagueness challenge to a statute is “based on the principle of fair notice in that no one may be held criminally responsible and subject to criminal sanctions for conduct without fair warning as to the nature of the proscribed activity.” State v. Duttle, 2017-NMCA-001, ¶ 12 , 387 P.3d 885 (internal quotation marks and citation omitted).

2023A vagueness challenge to a statute 24 is “based on the principle of fair notice in that no one may be held criminally 9 1 responsible and subject to criminal sanctions for conduct without fair warning as to 2 the nature of the proscribed activity.” State v. Duttle, 2017-NMCA-001, ¶ 12 , 387 3 P.3d 885 (internal quotation marks and citation omitted).

2023The State responds by arguing that 19 we have already rejected a vagueness challenge to this statute in State v. Chavez, 20 2019-NMCA-068 , 451 P.3d 115 , and that the language of the statute makes it clear 21 whether a probationer must still comply and how it should operate. 22 {16} Although neither Defendant made a vagueness challenge to the district court, 23 we still review the issue on appeal.

2023The State responds by arguing that 19 we have already rejected a vagueness challenge to this statute in State v. Chavez, 20 2019-NMCA-068 , 451 P.3d 115 , and that the language of the statute makes it clear 21 whether a probationer must still comply and how it should operate. 22 {16} Although neither Defendant made a vagueness challenge to the district court, 23 we still review the issue on appeal.

2016See State v. Trujillo, 2012-NMCA-112, ¶ 7 , 289 P.3d 238 , cert. quashed, 2015- NMCERT-003, 346 P.3d 1163 . “[The appellate courts’] ultimate goal in statutory construction is to ascertain and give effect to the intent of the Legislature.” State v. Smith, 2004-NMSC-032, ¶ 8 , 136 N.M. 372 , 98 P.3d 1022 (internal quotation marks and citation omitted).

2016See State v. Trujillo, 2012-NMCA-112, ¶ 7 , 289 P.3d 238 , cert. quashed, 2015- NMCERT-003, 346 P.3d 1163 . “[The appellate courts’] ultimate goal in statutory construction is to ascertain and give effect to the intent of the Legislature.” State v. Smith, 2004-NMSC-032, ¶ 8 , 136 N.M. 372 , 98 P.3d 1022 (internal quotation marks and citation omitted).

2016See State v. Trujillo, 2012-NMCA-112, ¶ 7 , 289 P.3d 238 , cert. quashed, 2015- NMCERT-003, 346 P.3d 1163 . “[The appellate courts’] ultimate goal in statutory construction is to ascertain and give effect to the intent of the Legislature.” State v. Smith, 2004-NMSC-032, ¶ 8 , 136 N.M. 372 , 98 P.3d 1022 (internal quotation marks and citation omitted).

2016See State v. Trujillo, 2012-NMCA-112, ¶ 7 , 289 P.3d 238 , cert. quashed, 2015-NMCERT-003 , 346 P.3d 1163 . “[The appellate courts’] ultimate goal in statutory construction is to ascertain and give effect to the intent of the Legislature.” State v. Smith, 2004-NMSC-032, ¶ 8 , 136 N.M. 372 , 98 P.3d 1022 (internal quotation marks and citation omitted).

2021We apply “a two-part test for vagueness, considering whether the statute (1) fails to provide persons of ordinary intelligence using ordinary common sense a fair opportunity to determine whether their conduct is prohibited, or (2) fails to create minimum guidelines for enforcement and thus encourages subjective and ad hoc application of the law.” State v. Tsosie, 2011-NMCA-115, ¶ 31 , 150 N.M. 754 , 266 P.3d 34 (alterations, omissions, internal quotation marks, and citation omitted).

2021None address Section 30-22-19 from the standpoint of constitutional vagueness. a manner that it is not void for vagueness if a reasonable and practical construction can be given to its language.” State v. Duttle, 2017-NMCA-001, ¶ 13 , 387 P.3d 885 (internal quotation marks and citation omitted). {9} Applying the first part of the vagueness test, we disagree with Defendants that the assault on a jail statute fails to “provide persons of ordinary intelligence using ordinary common sense a fair opportunity to determine whether their conduct is prohibited[.]” Tsosie, 2011-NMCA-115, ¶ 31 (internal

2020See Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (concluding that when “no standard of conduct is specified at all” the law is unconstitutionally vague in that “men of common intelligence must necessarily guess at its meaning” (internal quotation marks and citation omitted)); State v. Smile, 2009- NMCA-064, ¶ 20, 146 N.M. 525 , 212 P.3d 413 (“In order to fall within the arbitrary and discriminatory prong of the vagueness test, the statute must have no standards or guidelines and therefore allow, if not encourage, subjective and ad hoc application.” (alterations, internal quotation ma

2009In Coates v. City of Cincinnati, 402 U.S. 611, 614 , 91 S.Ct. 1686 , 29 L.Ed.2d 214 (1971), for example, the United States Supreme Court held that a statute was unconstitutionally vague because it criminalized conduct that “annoyed” police officers or passers-by in Cincinnati.

2019See State v. Ebert, 2011-NMCA-098, ¶ 13 , 150 N.M. 576 , 263 P.3d 918 (analyzing the statute as it existed at the time of the alleged violation, Section 30-37-3.2 (2005), in a vagueness challenge and determining that the statute “ensures that communications are criminalized only when knowingly made to a child under the age of sixteen”).

2019See State v. Ebert, 2011-NMCA-098, ¶ 13 , 150 N.M. 576 , 263 P.3d 918 (analyzing the statute as it existed at the time of the alleged violation, Section 30-37-3.2 (2005), in a vagueness challenge and determining that the statute “ensures that communications are criminalized only when knowingly made to a child under the age of sixteen”).

2019See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70 , 309 P.3d 53 (“To rule on an inadequately briefed issue, [the appellate c]ourt would have to develop the arguments itself, effectively performing the parties’ work for them.”).

2019See In re Adoption of Doe, 1984-NMSC-024 , ¶ 2, 100 N.M. 764 , 676 P.2d 1329 (“We assume where arguments in briefs are unsupported by cited authority, counsel after diligent search, was unable to find any supporting authority.

2019See In re Adoption of Doe, 1984-NMSC-024 , ¶ 2, 100 N.M. 764 , 676 P.2d 1329 (“We assume where arguments in briefs are unsupported by cited authority, counsel after diligent search, was unable to find any supporting authority.

2012Cf. Northend Cinema, Inc., 585 P.2d at 1157-58 (rejecting a vagueness challenge that was in part based on an ordinance’s failure to clarify “how frequently [adult] films must be shown before a building is ‘used’ for the purpose” of showing adult films, because “any language in the ordinance which is uncertain is readily subject to a narrowing and constitutionally sound construction”); Entm’t Prods.

1999See City of Chicago v. Morales, 527 U.S. 41 , 119 S.Ct. 1849, 1875 , 144 L.Ed.2d 67 (1999); Kolender v. Lawson, 461 U.S. 352, 357 , 103 S.Ct. 1855 , 75 L.Ed.2d 903 (1983); State v. Pierce, 110 N.M. 76, 81-82 , 792 P.2d 408, 413-14 (1990). {26} The other arm of the vagueness test is whether the statute permits police officers, prosecutors, judges, or juries to engage in arbitrary and discriminatory enforcement of the statute, which occurs because the statute has no standards or guidelines and therefore allows, if not encourages, subjective and ad hoc application.

1999See City of Chicago v. Morales, 527 U.S. 41 , 119 S.Ct. 1849, 1875 , 144 L.Ed.2d 67 (1999); Kolender v. Lawson, 461 U.S. 352, 357 , 103 S.Ct. 1855 , 75 L.Ed.2d 903 (1983); State v. Pierce, 110 N.M. 76, 81-82 , 792 P.2d 408, 413-14 (1990). {26} The other arm of the vagueness test is whether the statute permits police officers, prosecutors, judges, or juries to engage in arbitrary and discriminatory enforcement of the statute, which occurs because the statute has no standards or guidelines and therefore allows, if not encourages, subjective and ad hoc application.