Be Annoyed. Be Very Annoyed.

How is the Constitution like my car keys? They both show up where you least expect them. The issue of whether someone drunk in public is guilty of a crime only if that person is annoying seems an unlikely candidate for a lesson in Constitutional law. But like the trunk of an ’86 Grand Am in Terre Haute, the law is full of surprises.

I wrote earlier this year about the futility in attempting to define what is “annoying.” That involved a Michigan city ordinance which was probably doomed to failure for its vagueness. It looks like the “void for vagueness” virus has migrated south.

Indiana recently tangled itself in a legal definition of annoying when it updated the state’s public intoxication law. Before the changes, the crime of Public Intoxication did not require proof that the intoxicated person actually did anything to anyone, or the public at large. The mere status of being intoxicated in public was illegal. The new(ish) law, which took effect July 1, 2012, says that a person commits the crime of Public Intoxication, when he is intoxicated in a public place and either endangers himself or others, breaches the peace, or “harasses, annoys, or alarms another person.” It’s this last phrase that is causing the ruckus.

In February, the Indiana Court of Appeals held the new law unconstitutionally vague. Specifically, the Court of Appeals pointed to the Webster’s definition of “annoy” since no definition was in the law. It then said that this definition “may encompass a vast array of human behavior,” and that the law provides no guidance for “distinguishing between acceptable and annoying conduct.” Morgan v. State, 49A02-1304-CR-386, 2014 WL 561665 (Ind. Ct. App. Feb. 13, 2014) transfer granted, opinion vacated, 2014 WL 1910503 (Ind. May 8, 2014). I happen to believe that careless use of quotation marks fits well within the “vast array” of behavior that could be annoying, as illustrated by my local gas station:

Grammar annoyances are purgatory for the literate.
Grammar annoyances are purgatory for the literate.

But maybe that’s just me. And that’s the point. Vagueness is a legislative no-no that falls under the broad Due Process rights in the Constitution. It’s bad because a law that is too vague does not put citizens on notice for what is–and is not–permissible. Thus, it’s not fair to enforce a law that has essential terms that aren’t clearly defined. It leads to subjectivity, and subjectivity in the eye of the law enforcer (police, prosecutor, Governor) undermines the authority and legitimacy of representative law-making. So, yes, determining whether a drunk is annoying can be a full blown Constitutional issue. Who’da thunk it?

The State Supreme Court heard oral arguments on this case just this week which are worth watching, if you’re into that sort of thing. The case even resulted in some Jimmy Fallon material:


Author: T. Andrew Perkins

I have practiced law in Rochester since 2001. My practice is varied: appellate law; general civil litigation; real estate; family law; and probate and estate planning. I am an active member in the Peru Grace Brethren Church. I have also served on the boards of various community organizations, including: Fulton County Community Foundation, Fulton County Leadership Academy, Fulton County United Way, Rochester Kiwanis Club, Fulton County Council on Aging, and the Fulton County Chamber of Commerce. You can reach my office from the Links page.

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