IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 1979-00

 

THE STATE OF TEXAS

v.



THOMAS MARKOVICH, Appellee




ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

TRAVIS COUNTY


Keasler, J., filed this dissenting opinion in which Price and Johnson J., joined.

O P I N I O N



The crux of the majority's opinion deals with the following questions: "Exactly how much did we rewrite 42.05 in Morehead v. State (1)? Did we add two new elements to the offense, or only one?" The majority answers "Just one." But this answer begs the deeper question, which I would tackle first: "By what authority did we rewrite the statute in the first place?" I believe Morehead erred to rewrite 42.05. Omitting those additions to the statute, I would consider 42.05 on its face and conclude that it is unconstitutionally vague and overbroad.

I.

In Morehead, the defendant was convicted under 42.05 and on appeal argued that the statute was overbroad. The court of appeals held that the statute, read literally, was unconstitutionally broad, but the statute could "be narrowed to reach only unprotected expression if it is construed to prohibit only speech and physical action incompatible with the normal activity of a particular place at a particular time." (2) In his petition for discretionary review, the defendant argued that "it was inappropriate for the court of appeals to assume the legislative prerogative and rewrite 42.05 in order to save it." (3)

We disagreed. Although we found 42.05 unconstitutionally overbroad, we nevertheless concluded that we did not need to invalidate the statute if it was "susceptible to a narrowing construction consistent with its language and apparent purpose." (4) While we conceded that a "[a] court may not simply assume the legislative prerogative and rewrite a statute in order to save it if the statute is not readily subject to a narrowing construction," (5) we concluded that 42.05 was "readily subject to a narrowing construction." (6)

Judge Clinton dissented. He said 42.05 was not "readily subject to a narrowing construction." (7) He argued that "[t]he only way for the statute to be saved is for this Court to add considerable language to it; i.e., for us literally to engage in judicial legislation." (8) He contended the Court should hold that 42.05 was facially overbroad. (9)

II.

We should not lightly overrule precedent. (10) Indeed, we have stated that "[o]ften, it is better to be consistent than right." (11) The United States Supreme Court has said essentially the same thing: "in most matters it is more important that the applicable rule of law be settled than that it be settled right." (12)

But "[s]tare decisis is not an inexorable command." (13) Rather, as Justice Kennedy has argued, "[t]he justifications for . . . stare decisis must rest upon the Court's capacity, and responsibility, to acknowledge its missteps." (14)

The doctrine of stare decisis is most compelling in statutory interpretation. (15) This is because the Legislature is always free to "alter what we have done." (16) "But it is another thing entirely to ignore error in extending discredited reasoning to previously unspoiled statutory provisions." (17) When a holding from this Court improperly rewrites a statute, we should correct that error, even if it requires overruling precedent. As Justice Stevens has argued, judicial activism "represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises." (18)

III.

Our leading case on statutory construction is Boykin v. State. (19) There we held that if the meaning of the statutory text should have been plain to the legislators who voted on it, we should give effect to that meaning unless it leads to an absurd result. (20)

Our holding in Boykin must be considered in connection with Supreme Court caselaw governing analysis of statutes containing constitutional issues. Justice Holmes wrote long ago that "[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score." (21) We should follow this canon out of respect for our Legislature, "which we assume legislates in the light of constitutional limitations." (22) This doctrine seeks "to minimize disagreement between the Branches by preserving . . . [legislative] enactments that might otherwise founder on constitutional objections." (23)

But this doctrine "is not designed to aggravate that friction by creating (through the power of precedent) statutes foreign to those . . . [that the Legislature] intended, simply through fear of a constitutional difficulty." (24) Instead, the doctrine is meant to serve a "basic democratic function of maintaining a set of statutes that reflect, rather than distort, the policy choices that elected representatives have made." (25)

As the Supreme Court has stated, "[s]tatutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature. Any other conclusion, while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress." (26)

IV.

It has long been a tenet of First Amendment law that, when evaluating a facial challenge to a statute, if it is "readily susceptible to a narrowing construction that would make it constitutional," it should be upheld. (27)

But narrowing constructions should not be adopted casually. The Supreme Court has made clear that, even when a party's proposed narrowing construction "might avoid . . . [a] constitutional problem," the Court is nevertheless "without power to adopt a narrowing construction of a state statute unless such a construction is reasonable and readily apparent." (28) When a statute is utterly open-ended, it will provide "no guidance whatever for limiting its coverage." (29) "The key to application of this principle is that the statute must be 'readily susceptible' to the limitation; . . . [a court should] not rewrite a state law to conform it to constitutional requirements." (30)

Most importantly, a court may not add language to a statute as a way of narrowing it. The Supreme Court addressed this exact issue more than a century ago. In addressing Kentucky's election law, the Court noted that the proposed way of limiting the statute's reach was "not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there." (31) The question, according to the Court, was "whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only." (32) The Court answered that question, "No," recognizing that "[t]o limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty." (33)

The Kentucky Supreme Court addressed this issue more recently in Musselman v. Commonwealth. (34) Musselman was convicted under Kentucky's harassment statute, and he appealed arguing the statute was impermissibly broad. The lower appellate court found the statute constitutional by construing it as limited to certain situations. The Kentucky Supreme Court rejected this approach. The Court stated that the problem with the lower appellate court's analysis was that "the limiting language utilized to avoid unconstitutionality . . . [was] supplied by the Court of Appeals and not by the statute." (35) The Court explained: "While we agree that if the words of a statute are ambiguous the court can and should so construe it as to render it constitutional, clearly the judiciary lacks power to add new phrases to a statute to provide a new meaning necessary to render the statute constitutional." (36) And again, the Court stated: "We reject the argument that a criminal statute facially unconstitutional can be 'authoritatively construed' by the courts to render it constitutional, if this is taken to mean the court can introduce an additional concept not present in the statute as written by the legislature." (37)

The Court of Appeals for the Third Circuit has also discussed this issue, setting forth two possible ways of narrowing a statute: "(a) assigning a narrow meaning to the language of the statute itself, or (b) deleting that portion of the statute that is unconstitutional." (38) Adding language to the statute is not an option. That court elaborated on this notion in Planned Parenthood v. Farmer. (39) There, in refusing to rewrite New Jersey's Partial-Birth Abortion Ban Act, the court explained that "[t]he Act, pure and simple, is not susceptible much less 'readily susceptible' to a narrowing construction." (40) Instead, to narrow it in the manner urged on appeal "would entail a complete rewriting, if not 'brute force.'" (41) That court "reject[ed] out of hand" the Seventh Circuit's observation in Hope Clinic v. Ryan that "courts do it all the time" (42) and instead echoed the dissent's view in Ryan that it would be an act of "judicial hubris" to narrow the statute by inserting language that the drafters of the statute did not use. (43)

The fact is, if additional language is required to achieve a desired construction, this means the statute is not "readily susceptible" to that construction. Rather, in conducting a true "narrowing construction," a court should continue to focus solely on the plain language of the statute and then determine whether that language alone is susceptible to a narrowing construction. This conclusion would harmonize Boykin with the Supreme Court's First Amendment precedent, rather than putting the two at odds.

Finally there are problems with "saving" statutes by rewriting them. The Supreme Court explained in Reese that "[i]t 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. This would, to some extent, substitute the judicial for the legislative department of the government." (44) In addition, judicial rewriting of statutes would severely diminish the Legislature's "incentive to draft a narrowly tailored law in the first place." (45)

In his book The Supreme Court in the American System of Government, Justice Jackson said that "[e]very Justice has been accused of legislating and every one has joined in that accusation of others." (46) My brief research certainly supports this comment. The citations in this opinion range from Clinton and Stevens to Posner and Holmes. Judges across the spectrum have accused others of engaging in judicial legislation. We should do more than pay lip service to the notion that courts should use restraint in statutory construction. We should heed Jackson's cautionary words: "When the Court has gone too far, it has provoked reactions which have set back the cause it is designed to advance and has sometimes called down upon itself severe rebuke." (47)

V.

Contrary to what we said in Morehead, 42.05 is not at all "readily subject to a narrowing construction." At that time, as well as now, the statute provided that "[a] person commits an offense if, with intent to prevent or disrupt a lawful meeting, procession, or gathering, he obstructs or interferes with the meeting, procession, or gathering by physical action or verbal utterance." There is nothing about this language that even remotely purports to limit its application to "physical acts or verbal utterances that substantially impair the ordinary conduct of lawful meetings and thereby curtail the exercise of others' First Amendment rights." The Morehead Court created this language from whole cloth, "perform[ing] a remarkable job of plastic surgery upon the face of the" statute. (48) This is not what is meant by the phrase "readily subject to a narrowing construction."

VI.

I believe a statute is only "readily subject to a narrowing construction" if the language already in the statute can be construed in a narrow manner. Adding language to a statute is legislating from the bench. The Morehead Court erred by legislating and we should take this opportunity to correct that "judicial hubris." We should not ignore Morehead's error in "extending discredited reasoning" to a "previously unspoiled" statute. Instead, we should overrule Morehead and interpret 42.05 purely as the Legislature wrote it. In doing so, we should find the statute unconstitutionally overbroad and vague. Because the majority concludes otherwise, I respectfully dissent.



DATE DELIVERED: May 29, 2002

PUBLISH

1. 807 S.W.2d 577 (Tex. Crim. App. 1991).

2. Id. at 579, quoting Morehead v. State, 746 S.W.2d 830, 835 (Tex. App. - Dallas 1988).

3. Id. at 579 (internal brackets omitted).

4. Id. at 581, citing Dubuisson v. State, 572 S.W.2d 694, 699 (Tex. Crim. App. 1978).

5. Id., citing M. Nimmer, Nimmer on Freedom of Speech 4.11[D] at 4-156 (1984).

6. Id.

7. Id. at 581 (Clinton, J., dissenting).

8. Id.

9. Id. at 582.

10. Awadelkariem v. State, 974 S.W.2d 721, 725 (Tex. Crim. App. 1998).

11. Malik v. State, 953 S.W.2d 234, 236 (Tex. Crim. App. 1997).

12. Agostini v. Felton, 521 U.S. 203, 235 (1997); Payne v. Tennessee, 501 U.S. 808, 827 (1991).

13. Payne, 501 U.S. at 828.

14. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 406 (2000) (Kennedy, J., dissenting).

15. See Hilton v. South Carolina Public Railways Com'n, 502 U.S. 197, 202 (1991).

16. Patterson v. McClean Credit Union, 491 U.S. 164, 172-73 (1989).

17. Reno v. Bossier Parish School Bd., 528 U.S. 320, 363 (2000) (Souter, J., concurring and dissenting)

18. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 98-99 (2000) (Stevens, J., dissenting and concurring).

19. 818 S.W.2d 782 (Tex. Crim. App. 1991).

20. Id. at 785.

21. Almendarez-Torres v. United States, 523 U.S. 224, 237 (1998), quoting United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916).

22. See Rust v. Sullivan, 500 U.S. 173, 191 (1991); Almendarez-Torres, 523 U.S. at 238.

23. Almendarez-Torres, 523 U.S. at 238.

24. Id.

25. Id.

26. Salinas v. United States, 522 U.S. 52, 59-60 (1997) (internal citation omitted).

27. Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 397 (1988) (internal quotations omitted).

28. Stenberg v. Carhart, 530 U.S. 914, 944 (2000); Boos v. Barry, 485 U.S. 312, 330 (1988).

29. Reno v. A.C.L.U., 521 U.S. 844, 884 (1997).

30. Am. Booksellers Ass'n, 484 U.S. at 397.

31. United States v. Reese, 92 U.S. 214, 221 (1875).

32. Id.

33. Id.

34. 705 S.W.2d 476 (Ky. 1986).

35. Id. at 477.

36. Id. (emphasis deleted).

37. Id. at 478.

38. A.C.L.U. v. Reno, 217 F.3d 162, 177 (3rd Cir. 2000), cert. granted, 532 U.S. 1037 (2001).

39. 220 F.3d 127 (3rd Cir. 2000).

40. Id. at 141.

41. Id.

42. Id., quoting Hope Clinic v. Ryan, 195 F.3d 857, 865 (7th Cir. 1999) (en banc).

43. Id., quoting Ryan, 195 F.3d at 866 (Posner, C.J., dissenting).

44. Reese, 92 U.S. at 221; see also Reno v. A.C.L.U., 521 U.S. at 884 n.49.

45. Osborne v. Ohio, 495 U.S. 103, 121 (1990); Reno v. A.C.L.U., 521 U.S. at 885 n. 50.

46. Robert H. Jackson, The Supreme Court in the American System of Government 79-80 (1955).

47. Id.

48. See Shuttlesworth v. Birmingham, 394 U.S. 147, 153 (1969).