Commonwealth v. Noel

¶1concurring.

¶2The majority concludes that Section 3103(a) of the Vehicle Code is unconstitutionally vague, and thus, declines to reach the question of whether that provision violates the non-delegation doctrine. .Because I believe that Appellees’ vagueness challenge cannot be sustained on the present facts, I would invalidate Section 3103(a) on the sole basis that it impermissibly delegates a legislative function to the judiciary.

¶3The prohibition against driving while intoxicated is clearly capable, by its nature, of application to individuals riding horses; Appellees do not dispute this. Hence, Appellees’ vagueness claim is facial, rather than “as-applied,” in nature. Notably, however, in cases that do not implicate First Amendment freedoms, this Court has rejected facial vagueness challenges where the defendant’s conduct is clearly prohibited by the statute in question.1See Commonwealth v. Mayfield, 574 Pa. 460, 467-68, 832 A.2d 418, 422 (2003); Commonwealth v. Cook, 468 Pa. 249, 253, 361 A.2d 274, 276-77 (1976); Commonwealth v. Hughes, 468 Pa. 502, 508, 364 A.2d 306, 309 (1976); Commonwealth v. Heinbaugh, 467 Pa. 1, 4, 354 A.2d 244, 245 (1976); see also United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975) (“It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.”). This is because the vagueness doctrine stems from due process concerns, namely, that citizens must be given fair warning of what conduct is prohibited. See Heinbaugh, 467 Pa. at 5, 354 A.2d at 246 (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). If a defendant’s conduct was clearly prohibited by the challenged statute, he received fair warning even though there may doubts about the statute’s applicability in other situations.2

¶4*556On the other hand, where the contention is that the statute improperly delegates legislative authority, the provision is asserted to be void ab initio for reasons distinct from due process. In this light, Appellees’ facial attack upon Section 3103(a) is less problematic than it would be in the context of a traditional vagueness dispute, particularly as courts are generally willing to entertain facial challenges to legislation based upon separation-of-powers precepts, see, e.g., Blackwell v. Commonwealth, State Ethics Comm’n, 523 Pa. 347, 354, 567 A.2d 630, 634 (1989); Samuel v. WCAB (Container Corp. of Am.), 814 A.2d 274, 277 (Pa.Cmwlth.2002); Nixon v. Administrator of Gen. Servs., 408 F.Supp. 321, 341 (D.D.C.1976), aff'd 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), which include the non-delegation doctrine embodied in Article II, Section 1 of the Pennsylvania Constitution.3See Lehman v. Pennsylvania State Police, 576 Pa. 365, 380, 839 A.2d 265, 274 (2003); Gilligan v. Pennsylvania Horse Racing Comm’n, 492 Pa. 92, 95, 422 A.2d 487, 489 (1980). Moreover, there is little imprecision in the text of Section 3103(a) itself, and hence, the asserted vagueness relates only to the question of which other provisions of the Vehicle Code may be combined with it to regulate transportation by animal. Thus, Appellees’ position is best understood, at bottom, as a contention that Section 3103(a) imposes upon the judiciary an essentially legislative task.

¶5On the merits of the constitutional issue, I agree with the majority that there are a number of aspects of the Vehicle Code which may or may not, by their nature, be capable of application to animals. These questions are best suited for the Legislature to resolve, as that body, by design, is able to solicit empirical information and is responsible to make policy *557decisions where necessary. Thus, in my view, Section 3103(a) violates the non-delegation rule, and this defect renders the provision void in its entirety. As this conclusion is fatal to the Commonwealth’s case, I agree with the majority that the trial court’s order should be affirmed.

¶9dissenting.

A horse is a horse, of course, of course, And no one can talk to a horse of course That is, of course, unless the horse is the famous Mr. Ed.

Go right to the source and ask the horse He’ll give you the answer that you’ll endorse. He’s always on a steady course. Talk to Mr. Ed.

¶10Ray Evans and Jay Livingston, Mr. Ed, (CBS, 1961-1966).

¶11Mr. Ed would know which sections of Part III do not “by their very nature” apply to his rider, and I attribute the equivalent horse sense to the ordinary reasonable person. Because I cannot agree § 3103(a) of the Vehicle Code is unconstitutionally vague, I offer my respectful dissent.

¶1275 Pa.C.S. § 3103(a) states that persons riding animals or animal-drawn vehicles upon a roadway are subject to all provisions of Part III of the Vehicle Code (Chapters 31 through 37) except those “which by their very nature can have no application.” Appellees were charged with violating § 3731, which states, “[a] person shall not drive, operate or be in actual physical control of the movement of any vehicle ... while under the influence of alcohol to a degree which renders the person incapable of safe driving.” 75 Pa.C.S. § 3731(a)(1). Clearly, this is a provision of the Vehicle Code which is not “by [its] very nature” without application to persons riding an animal on the roadway.

¶13In order for a penal statute to be constitutionally firm, the offense must be defined with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Commonwealth v. Mayfield, *558574 Pa. 460, 832 A.2d 418, 422 (2003) (citations omitted). “Due process is satisfied if the statute provides reasonable standards by which a person may gauge his future conduct.” Id.(citing Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244, 246 (1976)). .

¶14Due process simply requires the statute in question to contain reasonable standards to guide prospective conduct. Id.(citations omitted). The majority rides far afield, wondering whether an equestrian could be cited for driving the horse over a fire hose (§ 3708), or on a sidewalk (§ 3703), or whether § 3746 requires a person falling off a horse to notify police. The answer to the first two is “of course.” At a fire, the offense is not merely driving over hoses—it is driving over hoses without consent of the person regulating traffic. The statute involves regulating traffic away from the firefighting equipment, which makes eminent sense, and the offense is not “by its nature” inapplicable to drivers of animals. Likewise, one is no more allowed to endanger pedestrians by riding a horse on the sidewalk than one is allowed to drive one’s car there, momentarily or otherwise. As for the third hypothetical, the situation remains one of common sense; any ambiguity in this section involves the word “accident,” not its application to equestrians. Whether falling from a horse or a car, if it is on the highway and comprises an accident which results in injury, one must report; if there is no accident or injury, there is no need to report. The rationale for police involvement is no different just because the highway accident involved a horse.

¶15Besides, appellant is charged with DUI, not a fire hose or sidewalk violation. “It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” Heinbaugh, at 245 (citation omitted). It is not within the purview of this Court to adjudicate the rights of hypothetical individuals engaged in hypothetical conduct. Id.We could fashion imaginary fact situations until the livestock returns to the barn, but that is not proper constitutional analysis.

¶16*559Trotting through Part III, it is not difficult to discern which statutes “by their very nature” cannot apply to equestrians. Section 3113 deals with pedestrians, not drivers. Section 3343 describes how specific heavy equipment shall be moved over railroad crossings; a horse is not one of the listed pieces of equipment. Section 3366 deals with contents of speeding citations and § 3368 involves devices with which speed may be timed. The whole of Chapter 35 deals specifically with pedal-cycles, motorcycles,1 and pedestrians; animals “by their very nature” are not pedalcycles, motorcycles, or pedestrians, and not subject to these specially tailored sections.

¶17These are statutes “by their very nature” not applicable to animal drivers; interestingly, they are not by nature applicable to the driver of a car, either. It is the “rules of the road” that apply to the driver of the mustang and Mustang alike. Here, an ordinary person of common intelligence would know that riding a horse while intoxicated would be a violation of § 3731, just as the same person would recognize that the rider of a horse must stop at a stop sign, ride on the right side of the road, and signal before turning. See Mayfield, at 423 (statute sufficiently definite that ordinary people can understand what conduct is prohibited and is not so vague men of common intelligence must guess at its meaning and differ as to its application).

A horse is a horse, of course, of course, but the Vehicle Code does not divorce its application from, perforce, a steed, as my colleagues said.

“It’s not vague” I’ll say until I’m hoarse, and whether a car, a truck or horse this law applies with equal force, and I’d reverse instead.

¶18Because I cannot agree this statute is vague or ambiguous, I respectfully dissent.