Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Grafton No. 2005-375 THE STATE OF NEW HAMPSHIRE v. JANET MACELMAN Argued: July 20, 2006 Opinion Issued: November 1, 2006 Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State. DesMeules, Olmstead & Ostler, of Norwich, Vermont (George H. Ostler and Christopher A. Dall on the brief, and Mr. Ostler orally), for the defendant. DUGGAN, J. This is an interlocutory appeal from an order of the Superior Court (Houran, J.) denying two motions to dismiss the indictment against the defendant, Janet MacElman. See Sup. Ct. R. 8. We affirm and remand. We take the facts as presented in the interlocutory transfer statement. Cross v. Brown, 148 N.H. 485, 485 (2002). On May 21, 2004, the defendant was indicted on one count of maintaining a common nuisance in violation of RSA 318-B:16 (2004), which provides:

Any store, shop, warehouse, dwellinghouse, building, vehicle, boat, aircraft, or any place whatever which is resorted to by drug-dependent persons for the purpose of using controlled drugs or which is used for the illegal keeping or selling of the same shall be deemed a common nuisance. No person shall knowingly keep or maintain such a common nuisance. The defendant filed two motions to dismiss. In the first, based upon both the State and Federal Constitutions, she argued that RSA 318-B:16 is overbroad and vague both on its face and as applied. In the second, based upon the State Constitution, she argued that the indictment failed to state an offense under New Hampshire law. The trial court denied both motions. The issues before us on appeal present questions of constitutional law, which we review de novo. State v. McLellan, 149 N.H. 237, 240 (2003). We first address the defendant's claims under the State Constitution, State v. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance only. Id. at 232-33. I. Vagueness The defendant argues that RSA 318-B:16 is vague both on its face and as applied. Where a defendant's vagueness claim does not involve a fundamental right, a facial attack on the challenged statutory scheme is unwarranted. State v. Glidden, 122 N.H. 41, 46 (1982); see also Maynard v. Cartwright, 486 U.S. 356, 361 (1988) ("Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis."). The defendant argues that the statute "interferes with several protected freedoms recognized by State and Federal law, including the freedom of association, sanctity of the home, and privacy of health care." We will assume, without deciding, that the defendant has articulated a fundamental or First Amendment right and review her facial challenge to the statute. We will then consider her as-applied challenge. A statute can be impermissibly vague for either of two independent reasons: (1) it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; or (2) it authorizes or even encourages arbitrary and discriminatory enforcement. State v. Gatchell, 150 N.H. 642, 643 (2004). A party challenging a statute as void for vagueness bears a heavy burden of proof in view of the strong presumption favoring a statute's constitutionality. Id. at 643; see also State v. Smagula, 117 N.H. 663, 666 (1977) ("It is a basic principle of statutory construction that a legislative

2

enactment will be construed to avoid conflict with constitutional rights wherever reasonably possible."). In addition, "[m]athematical exactness is not required in a penal statute, nor is a law invalid merely because it could have been drafted with greater precision." State v. Porelle, 149 N.H. 420, 423 (2003) (quotation omitted). The defendant argues that the phrase "drug-dependent person" is vague both because it fails to provide a person of ordinary intelligence a reasonable opportunity to understand the conduct proscribed and because it allows for arbitrary enforcement. We address each argument in turn. We conclude that RSA 318-B:16 provides a person of ordinary intelligence a reasonable opportunity to understand the conduct it prohibits. The plain language of the statute and our scienter case law support this conclusion. The statute's plain language, read in conjunction with RSA 318B:1, X (2004), gives clear notice to a person of ordinary intelligence of the precise conduct, involving drug-dependent persons, that would constitute the nuisance. See Porelle, 149 N.H. at 423 (stating that "[t]he necessary specificity need not be contained in the statute itself, but rather, the statute in question may be read in the context of related statutes, prior decisions, or generally accepted usage" (citation omitted)). RSA 318-B:1, X defines a "drugdependent" person as: any person who has developed a state of psychic or physical dependence, or both, upon a controlled drug following administration of that drug upon a repeated periodic or continuous basis. No person shall be classified as drug dependent who is dependent: (a) Upon a morphine-type drug as an incident to current medical treatment of a demonstrable physical disorder other than drug dependence, or (b) Upon amphetamine-type, ataractic, barbituratetype, hallucinogenic or other stimulant and depressant drugs as an incident to current medical treatment of a demonstrable physical or psychological disorder, or both, other than drug dependence. RSA 318-B:1, X. This definition of "drug-dependent person" does not involve any level of unacceptable guesswork. Among other things, it: (1) delineates the type of dependence that would render an individual "drug-dependent" (psychic or physical); (2) discusses the nature of the drug's administration to the dependent person (repeated periodic or continuous); and (3) enumerates particular classes of medication, the use of which would not render a person

3

"drug-dependent." RSA 318-B:1, X. Furthermore, RSA 318-B:16's requirement that drug-dependent persons must resort to the particular location for the purpose of using controlled drugs does not leave any doubt, for a person of ordinary intelligence, as to whether the lawful and prescribed consumption of medication in one's home or other location is prohibited by the statute. Clearly, it is not. Moreover, for each of its material elements, the statute requires a scienter of "knowingly." See State v. Morabito, 153 N.H. 302, 305 (2006). We have previously held that a scienter requirement in a statute ameliorates the concern that the statute does not provide adequate notice to citizens regarding the conduct that is proscribed. Porelle, 149 N.H. at 423; see also Hill v. Colorado, 530 U.S. 703, 732 (2000). Applied to each material element of the offense, the "knowingly" scienter requirement diminishes the risk of an individual being prosecuted for conduct that she could not understand. Accordingly, because the statute uses plain and easily understandable words, and since our reading of this statute indicates that it is sufficiently clear, we hold it is not unconstitutionally vague on its face. We now turn to the defendant's as-applied challenge and determine whether the statute provided her with a reasonable opportunity to know that her particular conduct was proscribed by the statute. See Porelle, 149 N.H. at 424. RSA 318-B:16 prohibited the defendant from knowingly keeping or maintaining a place to which persons psychically or physically dependent upon controlled drugs resorted for the purpose of using those controlled drugs. Here, the indictment charged the defendant with maintaining a premises to which drug-dependent persons resorted to use heroin. Keeping or maintaining a premises to which heroin-dependent users resort for the purpose of using that drug is clearly within the realm of conduct proscribed by the statute. Moreover, the record contains evidence that two males had died at the premises, the first from acute intoxication by the combined effects of alcohol and opiates and the second from a heroin overdose. Especially in light of the statute's requirement that the defendant keep or maintain such a place "knowingly," the likelihood that the defendant would be penalized for misunderstanding the words or application of the statute is remote. Accordingly, we hold that RSA 318-B:16 gave the defendant adequate warning of what actions were proscribed and we reject her argument that RSA 318-B:16 is void for vagueness as applied to her. We now turn to the defendant's contention that the statute, as written, is impermissibly vague because it authorizes or encourages discriminatory enforcement. See Gatchell, 150 N.H. at 643. The defendant posits that officers enforcing RSA 318-B:16 may have differing opinions as to who is a "drugdependent person" because the definition of that term is not clear. For the reasons stated above, we do not find the term "drug-dependent person" to be

4

unclear such that it would engender arbitrary or discriminatory enforcement. However, even assuming arguendo that there were some lack of clarity in the term "drug-dependent person," it does not raise the specter of arbitrary or discriminatory enforcement. We have previously determined that "[a]lthough the legislature must establish minimal guidelines to govern law enforcement, enforcement requires the exercise of some degree of police judgment." Porelle, 149 N.H. at 424 (quotation and citation omitted). In light of the three limitations on the definition of drug-dependent person noted above, we conclude that RSA 318-B:16 provides such minimal guidelines and that the degree of judgment required by RSA 318-B:16, to the extent it exists, is acceptable, both on its face and as applied in the defendant's circumstances. Having evaluated and rejected the defendant's vagueness challenges under the State Constitution, we conclude that the Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances. Id. at 423; Hill, 530 U.S. at 732. Accordingly, we reach the same result under the Federal Constitution as we do under the State Constitution. II. Overbreadth "A statute is void for overbreadth if it attempts to control conduct by means which invade areas of protected freedom." State v. Pike, 128 N.H. 447, 450-51 (1986) (quotation and citations omitted). "[T]he overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when judged in relation to the statute's plainly legitimate sweep." Chicago v. Morales, 527 U.S. 41, 52 (1999) (quotation omitted). The criterion of "substantial overbreadth" precludes a court from invalidating a statute on its face simply because of the possibility, however slight, that it might be applied in some unconstitutional manner. State v. Brobst, 151 N.H. 420, 422 (2004). Further, the substantial overbreadth doctrine applies to constitutional challenges of statutes that prohibit conduct, as well as challenges to those statutes prohibiting "pure speech" and "conduct plus speech." Id. The purpose of the overbreadth doctrine is to protect those persons who, although their speech or conduct is constitutionally protected, may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression. Id. The application of the overbreadth doctrine is strong medicine to be employed only as a last resort. Id. Mindful that "[l]egislative enactments are construed to avoid conflict with constitutional rights, and provisions may be cured through judicial construction," State v. Smith, 127 N.H. 433, 439 (1985) (citation omitted), we turn to the defendant's arguments.

5

First, the defendant argues that RSA 318-B:16 interferes with associational rights and that "[f]reedom of [a]ssociation is a protected liberty under both the State and Federal Constitutions." "Overbreadth attacks have . . . been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations." Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) (citations omitted). However, an appellant must fulfill two preconditions before triggering a state constitutional analysis: first, the appellant must raise the state constitutional issue in the trial court; second, the appellant's brief must specifically invoke a provision of the State Constitution. DeBenedetto v. CLD Consulting Eng'rs, 153 N.H. ___, ___, 903 A.2d 969, 982 (2006). Here, the defendant cites only the First Amendment to the United States Constitution in support of her position. She does not cite any provisions of the New Hampshire Constitution. We will not, therefore, undertake a state constitutional analysis of the defendant's associational freedom argument. In terms of the Federal Constitution, RSA 318-B:16 does not prohibit a substantial amount of protected associational activities in the constitutional sense. See, e.g., People ex. rel. Gallo v. Acuna, 929 P.2d 596, 608-09 (Cal. 1997) (summarizing United States Supreme Court cases involving First Amendment associational rights). In fact, RSA 318-B:16 does not punish anyone for, or prevent anyone from, associating with anyone else in contravention of the rights the United States Supreme Court has articulated under the First Amendment to the Federal Constitution. See id. Rather, RSA 318-B:16 proscribes particular conduct

Download 2005-375, STATE OF NH v. JANET MACELMAN.pdf

New Hampshire Law