Question: Was His Act "Indecent, Immodest, or Filthy"?

State v. Metzger 319 N.W.2d 459 (Neb. 1982) HISTORY Douglas E. Metzger was convicted in the municipal court of the city of Lincoln, Nebraska, of violating § 9.52.100 of the Lincoln Municipal Code. The District Court, Lancaster County, affirmed the District Court judgment. Metzger appealed to the Nebraska Supreme Court. The Supreme Court reversed and dismissed the District Court's judgment. KRIVOSHA, CJ. FACTS Metzger lived in a garden-level apartment located in Lincoln, Nebraska. A large window in the apartment faces a parking lot that is situated on the north side of the apartment building. At about 7:45 a.m. on April 30, 1981, another resident of the apartment, while parking his automobile in a space directly in front of Metzger's apartment window, observed Metzger standing naked with his arms at his sides in his apartment window for a period of five seconds. The resident testified that he saw Metzger's body from his thighs on up. The resident called the police department and two officers arrived at the apartment at about 8:00 a.m. The officers testified that they observed Metzger standing in front of the window eating a bowl of cereal. They testified that Metzger was standing within a foot of the window, and his nude body, from the mid-thigh on up, was visible.

The pertinent portion of ß 9.52.100 of the Lincoln Municipal Code, under which Metzger was charged, provides as follows: "It shall be unlawful for any person within the City of Lincoln to commit any indecent, immodest or filthy act in the presence of any person, or in such a situation that persons passing might ordinarily see the same." OPINION The issue presented to us by this appeal is whether the ordinance, as drafted, is so vague as to be unconstitutional. We believe that it is. Since the ordinance is criminal in nature, it is a fundamental requirement of due process of law that such criminal ordinance be reasonably clear and definite. The dividing line between what is lawful and unlawful cannot be left to conjecture. A citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime and the elements constituting it must be so clearly expressed that the ordinary person can intelligently choose in advance what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things and providing a punishment for their violation should not admit of such a double meaning that the citizen may act upon one conception of its requirements and the courts upon another. A statute which forbids the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application violates the first essential elements of due process of law.

It is not permissible to enact a law which in effect spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrongdoers may also be caught. The test to determine whether a statute defining an offense is void for uncertainty is whether the language may apply not only to a particular act about which there can be little or no difference of opinion, but equally to other acts about which there may be radical differences, thereby devolving on the court the exercise of arbitrary power of discriminating between the several classes of acts. The dividing line between what is lawful and what is unlawful cannot be left to conjecture. In the case of Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), the U.S. Supreme Court declared a vagrancy statute of the city of Jacksonville, Florida, invalid for vagueness, saying "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." The ordinance in question makes it unlawful for anyone to commit any "indecent, immodest or filthy act." We know of no way in which the standards required of a criminal act can be met in those broad, general terms.

There may be those few who believe persons of opposite sex holding hands in public are immodest, and certainly more who might believe that kissing in public is immodest. Such acts cannot constitute a crime. Certainly one could find many who would conclude that today's swimming attire found on many beaches or beside many pools is immodest. Yet, the fact that it is immodest does not thereby make it illegal, absent some requirement related to the health, safety, or welfare of the community. The dividing line between what is lawful and what is unlawful in terms of "indecent," "immodest," or "filthy" is simply too broad to satisfy the constitutional requirements of due process. Both lawful and unlawful acts can be embraced within such broad definitions. That cannot be permitted. One is not able to determine in advance what is lawful and what is unlawful. We do not attempt, in this opinion, to determine whether Metzger's actions in a particular case might not be made unlawful, nor do we intend to encourage such behavior. Indeed, it may be possible that a governmental subdivision using sufficiently definite language could make such an act as committed by Metzger unlawful. We simply do not decide that question at this time because of our determination that the ordinance in question is so vague as to be unconstitutional. We therefore believe that § 9.52.100 of the Lincoln Municipal Code must be declared invalid. Because the ordinance is therefore declared invalid, the conviction cannot stand. Reversed and dismissed. DISSENT BOSLAUGH, J., joined by CLINTON and HASTINGS, JJ. The ordinance in question prohibits indecent acts, immodest acts, or filthy acts in the presence of any person. Although the ordinance may be too broad in some respects . . . the exhibition of his genitals under the circumstances of this case was, clearly, an indecent act. Statutes and ordinances prohibiting indecent exposure generally have been held valid. I do not subscribe to the view that it is only "possible" that such conduct may be prohibited by statute or ordinance.

Questions: 1. State the exact wording of the offense Douglas Metzger was convicted of.

2. List all of Metzger's acts and any other facts relevant to deciding whether he violated the ordinance.

3. State the test the court used to decide whether the ordinance was void-for-vagueness.

4. According to the majority, why was the ordinance vague?

5. According to the dissent, why was the ordinance clear enough to pass the void-for-vagueness test?

6. In your opinion, was the statute clear to a reasonable person? Back up your answer with the facts and arguments in the excerpt and information from the void-for-vagueness discussion in the text.