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City of Kennewick v. Henricks

December 17, 1996

CITY OF KENNEWICK, RESPONDENT,
v.
JOSEPH M. HENRICKS, PETITIONER. CITY OF KENNEWICK, RESPONDENT, V. JOSEPH N. DIVEN, PETITIONER.



District Court County: Benton. Appeal from Superior Court of Benton County. Docket No: 95-2-00271-1. Date filed: 08/03/95. Judge signing: Hon. Philip M. Raekes.

Petition for Review Denied May 6, 1997,

Authored by Philip J. Thompson. Concurring: Dennis J. Sweeney, Ray E. Munson.

The opinion of the court was delivered by: Thompson

THOMPSON, J. Joseph M. Henricks and Joseph N. Diven have obtained discretionary review of a Benton County Superior Court order reinstating traffic citations charging them with failure to wear motorcycle helmets, RCW 46.37.530(1)(c). *fn1 They contend the court erred in concluding a recent change in an administrative provision made the statute sufficiently definite to avoid this court's holding in State v. Maxwell, 74 Wash. App. 688, 878 P.2d 1220 (1994). Because we conclude the regulation was not vague as to their conduct, we affirm the superior court's decision.

Mr. Henricks and Mr. Diven were cited in January and February 1995 for violation of RCW 46.37.530. Both men concede they were not wearing helmets of any kind when they were cited. The Benton County District Court dismissed the citations, holding the statute was unconstitutionally vague.

The City of Kennewick appealed to the superior court, which reversed the district court's decision. The superior court's order is the subject of this appeal.

Mr. Henricks and Mr. Diven rely on Maxwell, in which we held RCW 46.37.530, as implemented through former WAC 204-10-040, was unconstitutionally vague. We need not address whether the Washington State Patrol's amendment of its regulation avoids the infirmities we discussed in Maxwell, because we conclude Mr. Henricks and Mr. Diven lack standing to challenge the helmet rules.

The rule regarding vagueness challenges is now well settled.

Vagueness challenges to enactments which do not involve First Amendment rights are to be evaluated in light of the particular facts of each case.

Maynard v. Cartwright, 486 U.S. 356, 361, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7, 71 L. Ed. 2d 362, 102 S. Ct. 1186, reh'g denied, 456 U.S. 950, 72 L. Ed. 2d 476, 102 S. Ct. 2023 (1982); United States v. Powell, 423 U.S. 87, 92-93, 46 L. Ed. 2d 228, 96 S. Ct. 316 (1975); United States v. Mazurie, 419 U.S. 544, 550, 42 L. Ed. 2d 706, 95 S. Ct. 710 (1975); United States v. National Dairy Prods. Corp., 372 U.S. 29, 32-33, 36, 9 L. Ed. 2d 561, 83 S. Ct. 594 (1963). See also State v. Carver, 113 Wash. 2d 591, 599, 781 P.2d 1308, 789 P.2d 306 (1989); [State v.] Worrell, [111 Wash. 2d 537,] 541[, 761 P.2d 56 (1988)]. Consequently, when a challenged ordinance does not involve First Amendment interests, the ordinance is not properly evaluated for facial vagueness. Rather, the ordinance must be Judged as applied. Maynard, at 361. Accordingly, the ordinance is tested for unconstitutional vagueness by inspecting the actual conduct of the party who challenges the ordinance and not by examining hypothetical situations at the periphery of the ordinance's scope. Cf. State v. Hegge, 89 Wash. 2d 584, 589, 574 P.2d 386 (1978). City of Spokane v. Douglass, 115 Wash. 2d 171, 182-83, 795 P.2d 693 (1990); see State v. Coria, 120 Wash. 2d 156, 163, 839 P.2d 890 (1992).

This case does not involve First Amendment rights and must be evaluated in light of the particular facts of the case. See Maxwell, 74 Wash. App. at 691.

There are statutes which contain both precisely worded prohibitions and prohibitions of uncertain application, and such a statute, though potentially vague as to some conduct, may nevertheless be constitutionally applied to one whose act clearly falls within the statute's "hard core." City of Bellevue v. Miller, 85 Wash. 2d 539, 541, 536 P.2d 603 (1975) (citing Smith v. Goguen, 415 U.S. 566, 577-78, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974)), abrogated on other grounds in State v. Smith, 111 Wash. 2d 1, 12-14, 759 P.2d 372 (1988); see Parker v. Levy, 417 U.S. 733, 755-56, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974); State v. Holmes, 98 Wash. 2d 590, 598, 657 P.2d 770 (1983); State v. Sherman, 98 Wash. 2d 53, 56, 653 P.2d 612 (1982); State v. Zuanich, 92 Wash. 2d 61, 63, 593 P.2d 1314 (1979).

RCW 46.37.530(1)(c) unambiguously requires motorcycle riders to wear "protective helmets." Although Mr. Henricks and Mr. Diven argue the statute only vaguely identifies what types of helmets satisfy the requirement, they cannot dispute that the statute clearly requires helmets of some type. This requirement is the "hard core" of the statute.

Therefore, because they were wearing no helmets at the time of the citations, Mr. Henricks and Mr. Diven lack standing to claim vagueness as to the rules ...


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