Invoking the provisions of R.S. 13:4711,
Prior to hearing on the request for a preliminary injunction defendants presented, as a part of a preemptory exception of no cause of action, the argument that La.R.S. 13:4711 et seq. is unconstitutionally vague. The district court agreed with this contention, found the statute to be void for vagueness, and sustained the exception of no cause of action with respect to the injunctive relief sought, and to that extent dismissed plaintiff's petition. Plaintiff has appealed to this Court under the provisions of Article V, Section 5(D)(1) of the Louisiana Constitution of 1974, which provides for direct appeal to the Supreme Court in a case in which a law or ordinance has been declared unconstitutional.
La.R.S. 13:4711 permits the enjoining of the "maintenance of a nuisance" after first defining the same as follows: "to carry on, to conduct or to knowingly permit to exist, without instituting and proceeding with the legal action necessary to enjoin, prostitution, assignation or obscenity as now defined, or as hereafter defined, by the criminal laws of this state." Additionally,
Violation of the provisions of an injunction or order of abatement issued under these provisions constitutes contempt of court and is punishable by a fine of not less then $100 nor more than $500 or by imprisonment in the parish prison for not more than one year or both. If the offender is convicted of a second or subsequent contempt, the punishment shall be both fine and imprisonment. La.R.S. 13:4714, 4715.
Before the district court, defendants in the instant case set forth five grounds in support of their exception of no cause of action, including the allegation that La.R.S. 13:4711 et seq. is void for vagueness both on its face and as applied. Since the district court ruled the statute unconstitutional on the basis of this vagueness attack, we shall confine our consideration here to that issue.
The fourteenth amendment of the United States Constitution, as well as Article I, Section 2 of the Louisiana Constitution of 1974, command that words and phrases used in statutes be not so vague and indefinite that any "penalty" prescribed for their violation constitutes the taking of liberty or property without due process of law. Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed.2d 888 (1939); State v. Lindsey, 310 So.2d 89 (La.1975); City of Shreveport v. Brewer, 225 La. 93, 72 So.2d 308 (1954). Thus any statute which either forbids or requires the doing of an act and which, therefore, acts as a guide to future conduct, is deemed to be void for vagueness if "men of common intelligence must necessarily guess at its meaning and differ as to its application . . . ." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See U.S. v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); State v. Dardar, 257 La. 191, 241 So.2d 905 (1970); State v. Cloud, 248 La. 125, 176 So.2d 620 (1965); State v. Robertson, 241 La. 249, 128 So.2d 646 (1961); Note, 109 U.Pa.L.Rev. 67 (1960); Note, 62 Harv.L.Rev. 77 (1948).
La.R.S. 13:4711 et seq. requires owners, lessees, sublessees, employees and other persons in active concert or participation with them to institute and proceed "with the legal action necessary to enjoin prostitution, assignation or obscenity. . . ." or be faced with a law suit seeking to enjoin them from maintaining that nuisance and, possibly to close down their businesses and/or premises for one year. As previously noted, if an injunction is issued
The activities which are the focus of this public nuisance statute are "prostitution, assignation or obscenity as now defined, or as hereafter defined, by the criminal laws of this state" (emphasis added) La.R.S. 13:4711. In the instant case, there was no charge relative to obscenity. With respect to the allegations of assignation and prostitution contained in the petition, however, there is arguably some uncertainty as to what conduct on the premises will, if proved, bring the provisions of this statute into play. Assignation is nowhere defined in the criminal statutes of this state, but has been defined in the jurisprudence as "solicitation for prostitution and for crimes against nature." Garison v. Menendez, 158 So.2d 856 (La.App. 4th Cir. 1963).
At this time, however, it is not essential to resolve the problems with respect to the definitions of assignation and prostitution, for we conclude that the phrase "without instituting and proceeding with the legal action necessary to enjoin. . ." is so vague and indefinite that it does not give adequate notice of what action must be taken in order to avoid the issuance of an injunction or an order of abatement, or, once issued, of how to avoid being held in contempt for violation of the injunction. For this reason, La.R.S. 13:4711 et seq. violates the due process clauses of the United States and Louisiana Constitutions and is void for vagueness.
By the terms of La.R.S. 13:4711 et seq., defendants are being told that they have an affirmative duty to institute and proceed with the legal action necessary to enjoin any acts of prostitution or assignation which they know are taking place in a building which they lease or in the place of business which they operate or where they are employed. For example, the attorney general in his brief to this Court suggests that "if an operator is informed by the police that prostitutes frequently use his premises to solicit for prostitution, is shown photographs of known offenders, sees them in his place, sees them leaving the establishment with different male patrons,
It has been suggested in briefs and on oral argument that this terminology may conceivably mean one or all of the following: (1) cooperation with law enforcement officials; (2) self-help; (3) a law suit. Thus the district attorney suggested that possibly an owner, operator or employee could comply with the statute by calling the police and cooperating with them in enforcing the law. However, while this would probably be evidence tending to negate knowing acquiescence, it is unclear whether it is also "the legal action necessary to enjoin." And if that action does fall within the intent of the statute, it is still not clear what steps, if any, would have to be taken if the police are informed but do nothing to arrest the alleged prostitutes because of lack of probable cause or otherwise and, therefore, the activities continue. It was also suggested in briefs that an owner or operator could possibly extricate himself by employing self-help and asking persons who are "practicing" prostitution or assignation on the premises to leave.
The very fact that these various types of action have been suggested as possible ways in which a person can comply with the terms of La.R.S. 13:4711 et seq. lends support to the argument that the statute is void for vagueness. Yet even assuming that compliance clearly calls for the filing of a civil suit seeking injunctive relief, perhaps the most plausible interpretation of the language, the statute would still be vague for there is the additional uncertainty relative to whom the injunction proceedings should be filed against. For example, if a person believes that prostitution or assignation is being "practiced" in a building which he owns, he does not know whether he is required to sue his lessee; the sublessee; the manager of the business; a bartender or hotel maid; every woman who allegedly practices prositution or assignation on the premises, whether it
As has been shown by the various conceivable interpretations of the phrase "legal action necessary to enjoin" it is impossible for a person who ostensibly falls within the purview of La.R.S. 13:4711 et seq. to discover the statute's applicability, to evaluate the risk of sanction and to guide his future action or conduct. Thus La.R.S. 13:4711 et seq. fails to fulfill the due process requirement that statutes be sufficiently definite to give notice as to what conduct is necessary to avoid legal sanctions.
For the reasons assigned, the judgment of the lower court is affirmed.
SANDERS, C.J., dissents and assigns written reasons.
MARCUS, J., dissents and assigns reasons.
SUMMERS, J., dissents and assigns reasons.
MARCUS, Justice (dissenting).
I do not agree with the majority's conclusion that the phrase "without instituting and proceeding with the legal action necessary to enjoin, prostitution, assignation or obscenity" violates the due process clauses of the United States and Louisiana Constitutions and is void for vagueness. In my view, the provision is clear and definite and affords adequate notice of what action must be taken to avoid the issuance of an injunction or an order of abatement or, once issued, of how to avoid being held in contempt for violation of the injunction. Additionally, in my opinion, "prostitution" and "assignation" as defined in the criminal laws of this state have well-defined, well-understood, and generally-accepted meanings. Accordingly, I respectfully dissent.
SANDERS, Chief Justice (dissenting).
The majority has struck down this nuisance-abatement statute, holding that the following words are unconstitutionally vague:
I disagree. A statute satisfies the constitutional requirements if it gives a person of ordinary intelligence fair notice of what conduct is criminal. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1953); State v. Heck, La., 307 So.2d 332 (1975); City of Baton Rouge v. Norman, La., 290 So.2d 865 (1974).
In testing a statute, the words should be taken in their usual sense, in connection with the context, and in the light of the purpose of the provisions. See State v. Heck, supra; State v. Truby, 211 La. 178, 29 So.2d 758 (1947).
In context, the provision reads as follows:
This provision means that the operator of a business who knowingly allows prostitution to be practiced on his premises without
In my opinion, the statute is reasonably clear, and I would uphold it.
For the reasons assigned, I respectfully dissent.
SUMMERS, Justice (dissenting).
I dissent for the reasons assigned by the Chief Justice.
Maintenance of a nuisance in or upon any building, structure, land, watercraft or movable, or any part thereof, by the owner, lessee, sublessee or occupant thereof, his officers, agents, representatives, employees or any other person or persons in active concert of participation with him or them, may be enjoined as provided in R.S. 13:4711 through R.S. 13:4714.
Maintenance of the same nuisance at any other location within the state by the adverse party, his officers, agents, representatives, employees or any other person or persons in active concert or participation with him or them may also be enjoined in such action.
An order of abatement directing effectual closing of the building, structure, land or other place may be entered as a part of the judgment in the case as provided in R.S. 13:4715. Abatement shall not be an authorized remedy in cases involving obscenity.
Amended by Acts 1970, No. 451, § 1; Acts 1974, No. 277, § 1."