Opinion
Case No. 4D99-1375.
Opinion filed September 13, 2000. July Term 2000.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Richard L. Oftedal, Judge; L.T. Case No. 97-9364CFA02.
Robert A. Butterworth, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellant.
Michael Dubiner of Dubiner Wilensky, P.A., West Palm Beach, for appellee.
Florida's child abuse statute makes it a felony to commit an intentional act which could reasonably be expected to result in "mental injury" to a child. The trial court held the statute unconstitutional as being both overbroad and vague. We conclude that the statute is not facially invalid under the overbreadth doctrine, because it can be narrowly construed so that it does not apply to speech. We agree with the trial court that the term "mental injury," which is not defined, is unconstitutionally vague.
Appellee, a public school teacher who works with autistic children, was charged with five counts of child abuse involving different children, contrary to section 827.03, Florida Statutes (Supp. 1996), which provides:
Abuse, aggravated abuse, and neglect of a child; penalties. —
(1)"Child abuse" means:
(a) Intentional infliction of physical or mental injury upon a child;
(b) An intentional act that could reasonably be expected to result in physical or mental injury to a child; or
(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child.
A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, . . .
[Emphasis added.]
Appellee filed a motion for statement of particulars to which the state responded as follows:
1. That as to Count I involving K.E., the act alleged is force-feeding;
2. That as to Count II involving Su.A. is slapping and/or screaming at and/or telling Su.A. that she is "bad";
3. That as to Count III involving J.G.C., the act alleged is slapping and/or striking;
4. That as to Count IV involving E.A. the act alleged is force-feeding;
5. That as to Count V involving Sh.A., the act alleged is screaming at Sh.A. because he was touching his genital area and/or screaming at Sh.A. to go to the bathroom.(R25)
Appellee then moved to dismiss, arguing that the statute was unconstitutionally overbroad because it applied to speech protected by the First Amendment and was unconstitutionally vague because mental injury was not defined. At the hearing on the motion the state conceded that there was no evidence of any physical injuries caused by appellee. It was the state's position that the appellee could be convicted of felony child abuse for humiliating a child.
The trial court held the statute unconstitutional as being both overbroad and vague based on the same reasoning. However, as the Florida Supreme Court explained in Southeastern Fisheries Ass'n v. Department of Natural Resources, 453 So.2d 1351, 1353 (Fla. 1984):
Too often, courts and lawyers use the terms "overbroad" and "vague" interchangeably. It should be understood that the doctrines of overbreadth and vagueness are separate and distinct. The overbreadth doctrine applies only if the legislation "is susceptible of application to conduct protected by the First Amendment." Carricarte v. State, 384 So.2d 1261, 1262 (Fla.), cert. denied, 449 U.S. 874, 101 S.Ct. 215, 66 L.Ed.2d 95 (1980) (citing Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)).
Overbreadth
The Florida Supreme Court explained the overbreadth doctrine inWyche v. State, 619 So.2d 231, 235 (Fla. 1993):
When legislation is drafted so that it may be applied to conduct that is protected by the First Amendment, it is said to be unconstitutionally overbroad. See Southeastern Fisheries Ass'n, Inc. v. Department of Natural Resources, 453 So.2d 1351, 1353 (Fla. 1984). This overbreadth doctrine permits an individual whose own speech or conduct may be prohibited to challenge an enactment facially "because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). [footnote omitted.]
In this case some of the counts are based solely on oral statements. Section 827.03(1)(b) is, accordingly, being used to prosecute conduct protected by the First Amendment. Schmitt v. State, 590 So.2d 404, 412 (Fla. 1991) ("Application of the overbreadth doctrine is particularly appropriate where . . . the statute clearly infringes upon protected forms of free speech.").
It does not automatically follow, however, that the statute is facially invalid. A statute is facially invalid as overbroad only if it "reaches a substantial amount of constitutionally protected conduct."Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). In Doe v. Mortham, 708 So.2d 929, 931 (Fla. 1998), the Florida Supreme Court, explaining that courts should attempt to narrowly construe statutes before holding them facially invalid as overbroad, quoted from Broadrick v. Oklahoma, 413 U.S. 601, 616 (1973):
It remains a "matter of no little difficulty" to determine when a law may properly be held void on its face and when "such summary action" is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function [is a] limited [one]. . . . To put the matter another way . . . 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. It is our view that [the Oklahoma statute] is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.
If a statute which punishes protected speech can be narrowly construed so as to avoid its application to speech, the statute can withstand an overbreadth challenge. Gooding v. Wilson, 405 U.S. 518 (1972); Doe.
The state's interest in protecting children from physical abuse, which is the primary purpose behind the statute involved in this case, is compelling. Any constitutionally protected conduct which could be prosecuted under this statute is insubstantial, compared to the other types of conduct to which the statute is directed. We conclude, as our supreme court did with the election laws involved in Doe, that this statute is not substantially overbroad and can be upheld against an overbreadth argument by narrowly construing it as not applicable to speech.
The state relies heavily on State v. Bley, 652 So.2d 1159, 1160 (Fla. 2d DCA 1995), in which the predecessor to the statute involved in the present case was unsuccessfully challenged as being vague and overbroad. Section 827.04(2) then provided:
Whoever, willfully or by culpable negligence, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment, or who, knowingly or by culpable negligence, inflicts or permits the infliction of physical or mental injury to the child, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
The information in Bley charged that the defendant had struck, pinched and pulled the hair of a child, causing physical or mental injury. In rejecting the overbreadth argument, the court stated:
The overbreadth doctrine applies only if the challenged legislation is directed to conduct protected by the First Amendment. Southeastern Fisheries Ass'n, Inc. v. Dep't of Natural Resources, 453 So.2d 1351 (Fla. 1984). Since the child abuse statute under consideration does not involve conduct protected by the First Amendment, the overbreadth doctrine is not applicable in this case.
Id. at 1161. We have been unable to find the source for the use of the words "directed to" in the first sentence of the above quote. The factor is whether the legislation is "susceptible of application to conduct protected by the First Amendment." S.E. Fisheries, 453 So.2d at 1353 and cases cited. The statute in Bley was just as susceptible of application to protected conduct as is the statute in this case. Bley's use of the word "directed" may have skewed its overbreadth analysis, with which we disagree.
Vagueness
Our limitation of section 827.03 so that it is not applicable to speech does not resolve all of the issues in this case, because two of the counts in this case charged appellee with "force feeding," and two other counts charged appellee with "slapping" or "striking." The state acknowledged to the trial court that it had no proof of physical injuries caused by this conduct and that it was relying solely on mental injury. The trial court held the term "mental injury" unconstitutionally vague.
A statute is vague if it "fails to give adequate notice of what conduct is prohibited." S.E. Fisheries, 453 So.2d at 1353. Penal statutes which are vague violate the due process clause of the United States Constitution. Id. One of the purposes of due process is to make sure that no person is convicted unless a fair warning has first been given "in language that the common world will understand, of what the law intends to do if a certain line is passed." McBoyle v. United States, 283 U.S. 25 (1931); Mourning v. Family Publications Serv., Inc., 411 U.S. 356 (1973).
Appellee contends, and the trial court found, that the term "mental injury," which is not defined anywhere in the statute, is unconstitutionally vague. As Judge Oftedal explained in the order under review:
Were the statute limited to the expectation of physical injury, it might pass constitutional muster. But to require ordinary persons to be knowledgeable as to the likelihood of whether their words or actions would result in "mental injury" asks too much. There are no statutory guidelines regarding such conduct and the term "mental injury" is left undefined. While the legislature certainly has the authority and indeed, the duty, to prohibit and punish child abuse "it must do so with a reasonable precision that does not simultaneously outlaw innocent conduct and the normal incidents of home-life." Schmitt [v. State, 590 So.2d 404, 413 (Fla. 1991)].
The statute as amended could possibly subject all those parents who ever called their children "stupid" or other less flattering and insulting terms to criminal prosecution in the event someone determined that such insults were likely to demean the child, even in the absence of any objective harm or injury. .
. . .
Other hypothetical situations illustrating the vagaries and overbreadth of the statute abound. Is the over-zealous Little League coach who benches his left fielder for dropping a pop-fly, guilty of committing a third degree felony because the child may likely suffer humiliation and a subsequent loss of confidence or self-esteem? . . . Are these the kind of "mental injuries" of which the statute speaks and if so, who makes that determination? The State confessed that it cannot. If the Assistant State Attorney charged with enforcement and prosecution of the statute cannot discern whether such behavior is a crime, how can a layperson be expected to do so, especially given the State's position that humiliation alone is sufficient to trigger the statute.
The last observation of the trial court in the above quote is particularly significant, because criminal statutes which are vague suffer from two infirmities. They not only fail to give notice of what conduct is prohibited, but they also permit arbitrary and discriminatory prosecution. Hill v. Colorado, 120 S.Ct. 2480, 2498 (2000). The "mental injury" part of this statute would, if upheld, allow the "parade of horrible" prosecutions hypothesized by the trial court. We therefore agree that the term "mental injury," as used in this statute, is unconstitutionally vague.
The state relies on State v. Riker, 376 So.2d 862 (Fla. 1979), in which the 1977 version of the child abuse statute, section 827.04(2), made a person who "knowingly or by culpable negligence, permits physical or mental injury to the child," guilty of a misdemeanor. The Florida Supreme Court held that the words "mental injury," as well as the other provisions of the statute, were not void for vagueness. Riker is distinguishable, however, because the 1977 version of this statute contained the following definition of "mental injury:"
"Mental injury" means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in his ability to function within his normal range of performance and behavior, with due regard to his culture.
§ 827.07(i), Fla. Stat. (1977). Because the statute in Riker defined mental injury in a specific way, and there is no definition in the version of the statute involved in this case, Riker is not controlling.
We don't know whether the deletion of the definition of mental injury by the legislature was intentional. What we do know is that there has been no definition of mental injury in Chapter 827 since 1983. At that time the definition was removed from Chapter 827, along with other provisions involving reporting, investigating, and preventing child abuse, and moved to Chapter 415. The definition, which was in section 415.503(8) in 1983, was moved to section 39.0015(44) in 1998. See ch. 98- 403, § 19, Laws of Fla.
In Bley, which we discussed on the issue of overbreadth, the court upheld the 1995 version of our child abuse statute against a vagueness attack, but it did so relying on Riker. The problem with Bley's reliance on Riker is that the 1995 version of the statute involved in Bley contained no definition of mental injury, while the 1977 version of the statute in Riker did. We accordingly do not agree with the Bley court's conclusion that "mental injury" is not vague.
Conclusion
We therefore hold that section 827.03(1) is not facially invalid as being overbroad, because the overbreadth is not substantial and can be cured by limiting the application of the statute to conduct not protected by the First Amendment. We do hold that "mental injury" as used in section 827.03 is unconstitutionally vague and affirm the dismissal of the information. This opinion does not preclude prosecution under section 827.03 for conduct which causes physical injuries.
GROSS, J., and FINE, EDWARD H., Associate Judge, concur.