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HomeMy WebLinkAbout00-2010 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 00-2010 CRIMINAL : : MARIAN MCINERNEY : IN RE: MOTION TO QUASH/DISMISS BEFORE HESS, J. OPINION AND ORDER The defendant in this case, Marian McInerney, has been charged with a violation of Ordinance 308 of the Borough of New Cumberland as a result of an incident that occurred in May of 2000. According to the citation, the allegation against her is that, by her words and conduct, she caused a disturbance of the peace and good order of the borough and specifically that she: … cause[d] a disturbance at Hillside Elementary School during a science fair which disturbed teachers and visitors. Shortly before the incidents complained of, Ms. McInerney had been consoling her son whose science fair project had not, apparently, scored as well as he thought it should have. Ms. McInerney apparently became frustrated with this situation. She grew loud and persistent in wanting to know who was responsible for setting the rules of the science fair. She also made pointedly disparaging comments about the competency of the teaching staff. One of the teachers to whom Ms. McInerney directed her remarks felt threatened though one of the other teachers did not. 00-2010 CRIMINAL The ordinance with which Ms. McInerney stands charged makes it unlawful for a person to engage in a “disorderly practice.” A disorderly practice is committed by any person who, among other things, is: …guilty of any act, word or conduct causing or tending to cause a disturbance of the peace and good order of the borough, or causing or tending to cause any dangerous discomfort or annoyance … or who shall fight or quarrel…. The defendant in this case has not been charged with disorderly conduct under the 1 Commonwealth statute. Before this court is a motion to dismiss this prosecution on the ground that Ordinance 308 is unconstitutionally vague. As noted in Pringle v. Court of Common Pleas , 778 F.2d 998, the Supreme Court of the United States explained the rationales for the vagueness principle in Grayned v. City of Rockford , 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) as follows: It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing a fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates 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 application. Third, but related, 1 Officer Tracey King of the New Cumberland Police Department testified with forthrightness that he was not satisfied that the defendant’s conduct was a violation of 18 P.S. 5503. 2 00-2010 CRIMINAL where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone’ …than if the boundaries of the forbidden areas were clearly marked.” Id. at 107-08, 92 S.Ct. at 2298-99. As the United States Court of Appeals for the Third Circuit went on to note, in Pringle , supra : The assumption that even the most reasonable citizens are aware of the precise legal consequences of their actions is often based upon a fiction. Nevertheless, there is a constitutional mandate to legislatures to define criminal conduct carefully and specifically and thereby control the actions of those who apply the power of the state. The concept that “reasonable” persons should be aware of criminal prohibitions is therefore a standard used primarily to prevent legislatures from granting excessive decision-making authority to public officials. Id. at 1001. We believe that this case is controlled by the decision of the Pennsylvani a Supreme Court in City of Chester v. Elam , 408 Pa. 350, 184 A.2d 257 (1962). There the Supreme Court voided 2 a disorderly conduct ordinance with a vintage similar to the one in the instant matter. In Elam , the City Code of Chester made it unlawful for a person to create or participate in “a disturbance” or “disorderly assembly.” The court concluded that, from the wording of the ordinance in question, there was no standard by which people of common intelligence could determine what activity was proscribed. 2 The ordinance in the matter sub judice was enacted in May of 1965 and predates the Crimes Code. 3 00-2010 CRIMINAL In the New Cumberland ordinance, a person is guilty by conduct or words which disturb the peace. No particular words or conduct of any kind are described. Presumably, it suffices if someone finds the behavior “disturbing.” Similarly, the ordinance makes it unlawful to cause “annoyance.” As Mr. Justice Manderino noted in Com. v. Cook , 468 Pa. 249, 263, 361 A.2d 274, 281-282 (1976): What constitutes annoyance to one person is not always annoyance to another. Nor does inconvenience mean the same to all. For instance, the sounds of a parade, or even the parade itself, may cause great public inconvenience to many, while at the same time be a source of pleasure to others… A facial attack on a statute is indeed proper if the scope of the statute is so broad that it could be read as restricting or forbidding conduct which is protected by the First Amendment. See Lewis v. City of New Orleans , 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974). The New Cumberland ordinance can quite easily be read to forbid conduct which is thus protected. Moreover, the ordinance is, in any event, facially vague. ORDER AND NOW, this day of August, 2001, the within charge of a violation of Ordinance No. 308 of the Borough of New Cumberland is DISMISSED. BY THE COURT, _______________________________ Kevin A. Hess, J. Jaime Keating, Esquire Chief Deputy District Attorney Karl Rominger, Esquire 4 00-2010 CRIMINAL For the Defendant 5 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PE NNSYLVANIA : vs. : 00-2010 CRIMINAL : : MARIAN MCINERNEY : IN RE: MOTION TO QUASH/DISMISS BEFORE HESS, J. ORDER AND NOW, this day of August, 2001, the within charge of a violation of Ordinance No. 308 of the Borough of New Cumberland is DISMISSED. BY THE COURT, _______________________________ Kevin A. Hess, J. Jaime Keating, Esquire Chief Deputy District Attorney Karl Rominger, Esquire For the Defendant : rlm