STATE OF IOWA, Plaintiff-Appellee, vs. SHANNON WAYNE GEAR, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-345 / 08-1620
Filed September 17, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SHANNON WAYNE GEAR,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Poweshiek County, Michael R.
Stewart, District Associate Judge.
Appeal from the denial of a motion to dismiss, claiming the Iowa Code
section 123.46(2) is unconstitutional. AFFIRMED.
Dennis McKelvie and Denise McKelvie Gonyea of McKelvie Law Office,
Grinnell, for appellant.
Thomas J. Miller, Attorney General, Christen Douglass, Assistant Attorney
General, Michael W. Mahaffey, County Attorney, Rebecca Petig, Assistant
County Attorney, and Scott Wadding, student intern, for appellee.
Heard by Sackett, C.J., and Vogel, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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PER CURIAM
Shannon Gear appeals from the district court‟s denial of his motion to
dismiss the charge of public intoxication against him, claiming the underlying
statute, Iowa Code section 123.46(2) (2007) is unconstitutional. We affirm.
I. Background.
Gear staggered into a convenience store about 2:20 a.m. one morning
with slurred speech and reeking of alcohol. He repeatedly tried, but was unable
to operate the telephone. A police officer, who had seen Gear enter the store,
spoke with Gear. The officer observed that Gear smelled strongly of alcohol, had
bloodshot, watery eyes, had poor balance, and had slurred speech.
Gear
admitted he was intoxicated and knew it was illegal, but refused to submit to
sobriety testing. The officer arrested Gear.
The State charged Gear with public intoxication, second offense, in
violation of Iowa Code sections 123.46(2) and 123.91(1). Gear filed a pretrial
motion to dismiss, claiming Iowa Code section 123.46(2) is unconstitutional. He
alleged: (1) the statute is unconstitutional on its face, (2) it is overbroad and
violates the right of free speech, (3) it is vague and violates procedural and
substantive due process, and (4) it violates the prohibition against cruel and
unusual punishment. The district court denied the motion to dismiss. In its ruling
on the motion, the district court did not expressly rule on the constitutionality of
the statute. Rather, the court stated, “It is not the place of a district associate
judge to declare unconstitutional a statute that has withstood review before the
Iowa Supreme Court for the last seventy-three years.”
The supreme court
3
denied Gear‟s subsequent application for discretionary review. Following a trial
to the court on the minutes, Gear was convicted of public intoxication, second
offense. The court later sentenced Gear to pay a fine of $315 plus court costs
and a criminal penalty surcharge. Gear appeals.
II. Scope and Standards of Review.
Our review of a district court‟s ruling on a motion to dismiss is for
correction of errors at law. State v. Finders, 743 N.W.2d 546, 548 (Iowa 2008).
Our review of the constitutionality of a statute is de novo. See State v. Wade,
757 N.W.2d 618, 622 (Iowa 2008).
[S]tatutes are cloaked with a presumption of constitutionality. The
challenger bears a heavy burden, because it must prove the
unconstitutionality beyond a reasonable doubt. Moreover, “the
challenger must refute every reasonable basis upon which the
statute could be found to be constitutional.” Furthermore, if the
statute is capable of being construed in more than one manner, one
of which is constitutional, we must adopt that construction.
State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005) (quoting State v. HernandezLopez, 639 N.W.2d 226, 233 (Iowa 2002) (citations omitted)). “[W]e normally
avoid constitutional claims when an appeal can be decided on other grounds.”
State v. Kukowski, 704 N.W.2d 690, 691 (Iowa 2005). “We have an obligation to
preserve as much of a statute as possible within constitutional restraints.” Clark
v. Miller, 503 N.W.2d 422, 424 (Iowa 1993).
If any provision of an Act or statute or the application thereof to any
person or circumstance is held invalid, the invalidity does not affect
other provisions or applications of the Act or statute which can be
given effect without the invalid provision or application, and to this
end the provisions of the Act or statute are severable.
Iowa Code § 4.12; see also Clark, 503 N.W.2d at 424; American Dog Owners
Ass’n, Inc. v. City of Des Moines, 469 N.W.2d 416, 418 (Iowa 1991).
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III. Merits.
Because all of Gear‟s claims concern the language of Iowa Code section
123.46(2), we begin by setting forth the language of that subsection in its
entirety:
A person shall not use or consume alcoholic liquor, wine, or
beer upon the public streets or highways. A person shall not use or
consume alcoholic liquor in any public place except premises
covered by a liquor control license. A person shall not possess or
consume alcoholic liquors, wine, or beer on public school property
or while attending a public or private school-related function. A
person shall not be intoxicated or simulate intoxication in a public
place. A person violating this subsection is guilty of a simple
misdemeanor.
Iowa Code § 123.46(2) (emphasis added). This section is part of the “Iowa
Alcoholic Beverage Control Act.”
Id. § 123.1.
The legislature intended the
statute to be an exercise of the State‟s police power “for the protection of the
welfare, health, peace, morals, and safety” of the people of Iowa. Id. It is to “be
liberally construed for the accomplishment of that purpose.” Id.
Gear raises three constitutional challenges to the emphasized language
quoted above. First, he contends the statute is overbroad on its face because it
violates the constitutional right of free speech. Second, he contends the statute
is void for vagueness because it violates constitutional due process. Third, he
contends the statute violates the constitutional protection against cruel and
unusual punishment. We address each contention in turn.
A. Overbreadth. Gear contends section 123.46(2) is unconstitutionally
overbroad because the words “simulate intoxication” create “an inherent threat
against freedom of speech and press.” A statute is overbroad if “it attempts to
achieve a governmental purpose to control or prevent activities constitutionally
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subject to state regulation by means which sweep unnecessarily broadly and
thereby invade the area of unprotected freedoms.” City of Maquoketa v. Russell,
484 N.W.2d 179, 181 (Iowa 1992) (quoting State v. Pilcher, 242 N.W.2d 348, 353
(Iowa 1976)). An overbroad statute may be invalid on first amendment grounds
even when a defendant‟s activity is not itself constitutionally protected.
See
Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S. Ct.
2568, 2571-72, 96 L. Ed. 2d 500, 507 (1987); Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 503, 105 S. Ct. 2794, 2801, 86 L. Ed. 2d 394, 405 (1985).
However, “„the mere fact that one can conceive of some impermissible
applications of a statute is not sufficient to render it susceptible to an overbreadth
challenge.‟” State v. Todd, 468 N.W.2d 462, 466 (Iowa 1991) (quoting Members
of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S. Ct. 2118,
2126, 80 L. Ed. 2d 772, 783 (1984)).
The Supreme Court has held that, “particularly where conduct and not
merely speech is involved, we believe that the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the statute‟s plainly
legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908,
2917, 37 L. Ed. 2d 830, 842 (1973). Even if one of the alternative means of
violating section 123.46(2), simulating intoxication, could be interpreted as
restricting free speech as shown by actions, application of overbreadth principles
would result only in partial invalidity of the statute.
See Clark v. Miller, 503
N.W.2d at 424. Gear was convicted of actual intoxication in public. This falls
within the statute‟s “plainly legitimate sweep.” Broadrick, 413 U.S. at 615, 93
6
S. Ct. at 2917, 37 L. Ed. 2d at 842; see also Iowa Code § 123.1. We reject
Gear‟s overbreadth argument. Accordingly, we conclude the district court did not
err in denying Gear‟s motion to dismiss on this ground.
B. Vagueness. Gear contends the statute is facially void for vagueness.
He argues, because the term “intoxication” is not defined, “an ordinary citizen is
not able to judge as to when he or she is in violation of the law.” The State
contends Gear lacks standing to raise a facial challenge to section 123.46 for
vagueness because, “[i]f a statute is constitutional as applied to the defendant,
the defendant lacks standing to make a facial challenge unless a recognized
exception applies.” State v. Hunter, 550 N.W.2d 460, 463 (Iowa 1996). One
recognized exception is where free speech rights are implicated. State v. Price,
237 N.W.2d 813, 816 (Iowa 1976).
The Supreme Court has limited the
application of this exception only to where a statute‟s deterrent effect on
legitimate expression was “real and substantial.”
Young v. American Mini
Theatres, Inc., 427 U.S. 50, 60, 96 S. Ct. 2440, 2447, 49 L. Ed. 2d 310, 320
(1976).
Gear contends prohibiting simulated intoxication significantly infringes on
the rights of freedom of speech. He offers some hypothetical examples of how
the statute might be enforced so as to restrict free speech. In 1972 our supreme
court noted that “this rather unique provision—which the State and the defendant
agree has been found in the statutes of no other state—has been part of the
quoted section since 1935.”
State v. McGuire, 200 N.W.2d 832, 833 (Iowa
1972). That was the first time in thirty-seven years that anyone had possibly
7
been subject to a restriction of free speech based on the term “simulate.” In the
thirty-seven years since McGuire, none of the five additional times the supreme
court has reviewed the public intoxication statute indicate any restriction of the
right of free speech. Given the lack of impact this language has had on free
speech in nearly seventy-five years, we cannot say the deterrent effect of the
statute is real and substantial. Consequently, we conclude the exception does
not apply and Gear lacks standing to raise a facial challenge.
A statute may be unconstitutionally vague if it authorizes or encourages
arbitrary and discriminatory enforcement. Anspach, 627 N.W.2d at 232. Gear
argues the vagueness of the statute is “even more troubling [because] it provides
no guidance for police officers to determine at what point a person is
„intoxicated.‟” Although the statute does not reference an explicit, objectively
measurable standard for “intoxication,” such as the 0.08 blood alcohol
concentration used in section 321J.2, describing operating a motor vehicle while
intoxicated, we do not agree the language of section 123.46(2) that applies to
Gear‟s case encourages arbitrary and discriminatory enforcement. We conclude
the statute provides sufficient guidance to law enforcement personnel so that
they can understand what conduct is prohibited and does not encourage arbitrary
and discriminatory enforcement.
C. Cruel and Unusual Punishment. Gear contends the penalty “is so
excessively severe that it is disproportionate to the offense charged.” In August
of 2007 Gear was charged by trial information with “public intoxication, second
offense,” based on the events of June 25 and his prior conviction of public
8
intoxication in April of 2007. Public intoxication as defined in section 123.46 is a
simple misdemeanor. Section 123.91 provides a person is guilty of a serious
misdemeanor following a second conviction and an aggravated misdemeanor
following a third or subsequent conviction.
The maximum punishment for a
serious misdemeanor is up to one year in prison and a fine of up to $1875 plus
surcharges and costs. Gear argues “a year in prison for a crime that is neither
violent nor contains elements of moral turpitude is unconscionable.”
We begin by noting that the district court did not impose any prison or jail
time in this case and fined Gear about one-sixth of the maximum fine, plus
surcharges and costs, including the fees of his court-appointed attorney. The
court allowed Gear the alternative of working off his fine, surcharge, and costs by
performing community service.
“The Eighth Amendment prohibits sentences that are disproportionate to
the crime committed.” State v. Musser, 721 N.W.2d 734, 748 (Iowa 2006) (citing
Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 3006, 77 L. Ed 2d 637, 645
(1983)).
The legislature is afforded great latitude in setting the penalty for
crimes; a sentence that falls within the “statutorily prescribed parameters” will
rarely be found to be in violation of the Eighth Amendment. State v. Wade, 757
N.W.2d 618, 623 (Iowa 2008).
“Only extreme sentences that are grossly
disproportionate to the crime violate the Eighth Amendment.”
Id.
When a
defendant raises a disproportionality claim, we compare the severity of the
penalty with the seriousness of the crime. See State v. Lara, 580 N.W.2d 783,
785 (Iowa 1998). “This analysis is undertaken objectively without considering the
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individualized circumstances of the defendant”. Musser, 721 N.W.2d at 748. We
analyze further only when this comparison shows that the penalty‟s severity is
grossly disproportionate to the seriousness of the crime. Id.
The purpose of section 123.46(2) is to “prevent nuisance and annoyance
of the general public” and to serve as protection against offenders who endanger
themselves and others. Booth, 670 N.W.2d at 213. In light of these legitimate
state interests, a fine of $315.00, a criminal penalty surcharge, plus court costs is
not grossly disproportionate to the crime of a second offense under section
123.46(2). The State has a strong interest in protecting its inhabitants against
intoxicated persons who harass other citizens and do violence both to
themselves and to others. See Iowa Code § 123.1. While Gear may not have
been doing either of these when he was arrested, we make the disproportionality
analysis objectively, without regard to any defendant‟s particular circumstances.
Musser, 721 N.W.2d at 748.
Gear summarily claims his sentence is
disproportionate to his crime; he fails to meet the threshold of gross
disproportionality. Id. We need not analyze his claim further. See Solem, 463
U.S. at 284, 103 S. Ct. at 3006, 77 L. Ed. 2d at 645. This claim fails.
AFFIRMED.
Vogel, J. and Miller, S.J. concur; Sackett, C.J. dissents in part.
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SACKETT, C.J. (dissenting in part)
I dissent in part.
Shannon Wayne Gear, who was convicted of a violation of Iowa Code
section 123.46(2),1 contends the statute is unconstitutional. The focal question is
whether the word “intoxication,” used in the statute without definition, is vague.
Gear contends it is and, as a consequence, the statute is unconstitutional in that
it fails to provide explicit standards for those who enforce it. The State responds
that the statute does not allow for arbitrary enforcement and “[t]he meaning of the
word „intoxication‟ in section 123.46(2) can be ascertained by reference to
various sources.”2
The majority, while recognizing that the statute does not reference an
explicit, objectively measurable standard for “intoxication,” summarily concluded
that the statute provides sufficient guidance to law enforcement personnel so that
they understand what conduct is prohibited and does not encourage arbitrary and
discriminatory enforcement. They make this statement while admitting that this
statute does not reference an explicit, objectively measurable for intoxication
such as in section 321.J(2), defining operating a motor vehicle while intoxicated
by a blood alcohol concentration of 0.08.3
1
Iowa Code section 123.46(2) provides:
A person shall not be intoxicated or simulate intoxication in a public place.
A person violating this subsection is guilty of a simple misdemeanor.
2
I would suggest that the more sources there are to define a word the muddier its
definition becomes.
3
A person most probably would not be charged with violation of Iowa Code section
321.J(2) if the person had only had a glass of wine, but the majority‟s position that an
objectively measureable level for ingestion of an intoxicant is not necessary would allow
a conviction for public intoxication to be at a blood alcohol concentration of considerably
11
I agree with the State that an undefined word does not necessarily render
a statute unconstitutional if the meaning of the word can be fairly ascertained by
reference to similar statutes, the dictionary and the common law, or the generally
accepted meaning of the word.
I would concede that “intoxication” broadly
defines the state of any person who has consumed an intoxicant. However,
because “intoxication” is basically a stand-alone word without additional definition
in section 123.46, it does not distinguish a person who has had a glass of wine
from one who has had six cans of beer or a fifth of whiskey.4 Nor does section
123.46 require any conduct in addition to having the glass of wine necessary for
a finding of “intoxication” and incarcerating one against their will.
requires more in a mental health setting.5
The law
A number of states have added
“danger to self” or similar language to statues defining public intoxication. 6 Gear
less than 0.08—a strained but possible result of which would be for a person who has
ingested intoxicants to drive rather than walk or sleep on a park bench.
4
The issue may not have come up before because I do believe that Iowa law
enforcement officers are generally reasonable people. However the lack of a standard
opens the door for a vindictive or unreasonable officer to act unreasonably.
5
In O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 2493, 45 L. Ed. 2d 396,
406-407 (1975), the Court said:
A finding of “mental illness” alone cannot justify a state‟s locking a
person up against his will and keeping him indefinitely in simple custodial
confinement. Assuming that the term can be given a reasonably precise
content and that the “mentally ill” can be identified with reasonable
accuracy, there is still no constitutional basis for confining such persons
involuntarily if they are dangerous to no one and can live safely in
freedom.
6
For example, a number of our sister states define public intoxication (providing in
some cases for a criminal charge or others for a police officer placing the person in civil
protective custody) as being under the influence of an intoxicant to the degree that he or
she endangers himself or herself or others. See Ala. Code § 13A-11-10 (1975); Ariz.
Rev. Stat. Ann. § 36-2026 (2009); Ark. Code Ann. § 5-71-212 (2006); Conn. Gen. Stat.
§ 17a-683 (2005); Ill. Comp. Stat. Ann § 25-15 (2008); Ky. Rev. Stat. Ann. § 525.100
(2009); Neb. Rev. Stat. § 53-1,121 (2009); Nev. Rev. Stat. § 458.270 (2007); 42 Pa.
12
would not have met that definition, for he was just trying to use a telephone to get
a ride home.
Perhaps my position can best be illustrated by looking at two dictionary
meanings. The first is the State‟s cite defining “intoxicate” from the Webster’s
New Collegiate Dictionary (1977) as “to excite or stupefy by alcohol or a drug
[especially] to the point where physical or mental control is markedly7
diminished.” The second is a cite from Webster’s New Collegiate Dictionary 595
(3rd ed. 2005) that defines “intoxicate” as “[t]o bring about, [especially] by the
effect of ingested alcohol, any of a series of progressively deteriorating states
ranging from exhilaration8 to stupefaction.”9 The first definition would demand at
least some evidence of lack of physical or mental control and the second only
silly laughter.
How does the word intoxication give an officer an explicit,
objectively measurable standard to enforce the statute?
The State also responds to Gear‟s claims that:
The statute [123.46(2)] allows the state to regulate those
who are intoxicated and posing a danger either to themselves or
others. While section 123.46(2) is not designed to be enforced
against those who drink responsibly.10
The trouble with the State‟s argument is that the statue does not use the
words the State uses in its argument.
If it did, I would find the statute
Cons. Stat. § 8902 (2007) (citing to 18 Pa. Cons. Stat. § 5505 on public drunkenness);
Tex. Stat. Ann. § 49.02 (2007).
7
Webster’s New Collegiate Dictionary 686 (3rd ed. 2005) defines “markedly” three
ways. The definition most relevant here is “Clearly defined and evident: NOTICABLE.”
8
Id. 400 (defining “exhilarate” as to “make happy”).
9
No definition is found in Webster’s New Collegiate Dictionary for this word.
10
Also arguing without authority “that an intoxicated person‟s dangerous conduct does
not deserve First Amendment protection.”
13
constitutional, but it does not. Clearly someone who is harming others should be
arrested. The defendant here was not. If the legislature wishes to continue to
have public intoxication be a crime, the language the State uses above should be
included in the statute. Our statute is unique among the fifty states, many of
whom have decriminalized intoxication, facing the problem as a health problem
to be handled by public health rather than criminal processes.11
The majority also has sought to address the words “simulated intoxication”
in the statute and then found defendant did not have standing to raise the
challenge. I agree that the defendant does not have standing to address his
claim that it infringes on freedom of speech. The majority has dismissed his
challenge, noting that in State v. McGuire, 200 N.W.2d 832, 833 (Iowa 1972), the
court recognized it had been in the law since 1935, this was the first time it was
claimed to be a restriction on free speech, and was it unique among the states.
11
For example the policy of the Tennessee legislature states:
(a) It is the Policy of this state that intoxicated persons should be afforded
a continuum of treatment so they might lead normal lives as productive
members of society.
(b) The general assembly recognizes that character and pervasiveness of
alcohol abuse and alcoholism and that public intoxication and alcoholism
are health problems that should be handled by public health rather than
criminal procedures, when proper facilities, procedures, and services as
defined and set forth in this part are available.
(c) The general assembly recognizes the character and pervasiveness of
alcohol abuse and alcoholism and the public intoxication and alcoholism
are health problems that should be handled by public health problems
that should be handled by public health rather than criminal procedures,
when problems that should be handled by public health rather than
criminal procedures, when proper facilities, procedures, and services as
defined and set forth in this part and available.
(d) The general assembly find that the handling of intoxicated persons as
criminals contributes to jail overcrowding and the consumption of
resources needed for the handling of more serious and violent matters.
Tenn. Code Ann. § 68-24-503 (2009).
14
The majority then noted in the five times since McGuire that the Iowa Supreme
Court has reviewed the public intoxication statute, it did not indicate any
restrictions on free speech. The majority then concludes without citation that,
“Given the lack of impact this language has had on free speech in nearly
seventy-five years, we cannot say the deterrent effect of the statute is real and
substantial.” In McGuire, the court recognized that the defendant had raised the
challenge but elected not to address it, dismissing on other grounds. McGuire
fails to support the majority‟s conclusion on this issue.
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