2005-375, STATE OF NH v. JANET MACELMAN

This is an interlocutory appeal from an order of the

and Christopher A. Dall on the brief, and Mr. Ostler orally), for the defendant. DesMeules, Olmstead & Ostler, of Norwich, Vermont (George H. Ostler

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2005-375 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Grafton Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as challenge to the statute. We will then consider her as-applied challenge.

p. 2 has articulated a fundamental or First Amendment right and review her facial privacy of health care.” We will assume, without deciding, that the defendant Federal law, including the freedom of association, sanctity of the home, and

even encourages arbitrary and discriminatory enforcement. State v. Gatchell

statute's constitutionality. Id statute “interferes with several protected freedoms recognized by State and

opportunity to understand what conduct it prohibits; or (2) it authorizes or

bears a heavy burden of proof in view of the strong presumption favoring a statute is judged on an as-applied basis.”). The defendant argues that the

reasons: (1) it fails to provide people of ordinary intelligence a reasonable right, a facial attack on the challenged statutory scheme is unwarranted. State

666 (1977) (“It is a basic principle of statutory construction that a legislative

150 N.H. 642, 643 (2004). A party challenging a statute as void for vagueness Amendment interests are examined in light of the facts of the case at hand; the,

A statute can be impermissibly vague for either of two independent applied. Where a defendant’s vagueness claim does not involve a fundamental

maintain such a common nuisance.

356, 361 (1988) (“Vagueness challenges to statutes not threatening First common nuisance. No person shall knowingly keep or which we review v. Glidden, 122 N.H. 41, 46 (1982); see also Maynard v. Cartwright, 486 U.S.

offense under New Hampshire law. The trial court denied both motions. The defendant argues that RSA 318-B:16 is vague both on its face and as

232-33. 124 N.H. 226, 231 (1983), and cite federal opinions for guidance only. Id. at first address the defendant’s claims under the State Constitution, State v. Ball,

illegal keeping or selling of the same shall be deemed a de novo. State v. McLellan, 149 N.H. 237, 240 (2003). We

The issues before us on appeal present questions of constitutional law,

upon the State Constitution, she argued that the indictment failed to state an overbroad and vague both on its face and as applied. In the second, based the State and Federal Constitutions, she argued that RSA 318-B:16 is The defendant filed two motions to dismiss. In the first, based upon both

of using controlled drugs or which is used for the resorted to by drug-dependent persons for the purpose vehicle, boat, aircraft, or any place whatever which is Any store, shop, warehouse, dwellinghouse, building, particular classes of medication, the use of which would not render a person

p. 3 dependent person (repeated periodic or continuous); and (3) enumerates

disorder other than drug dependence, or

nuisance. See

physical); (2) discusses the nature of the drug’s administration to the dependence that would render an individual “drug-dependent” (psychic or unacceptable guesswork. Among other things, it: (1) delineates the type of current medical treatment of a demonstrable physical

(a) Upon a morphine-type drug as an incident to precise conduct, involving drug-dependent persons, that would constitute the classified as drug dependent who is dependent:

B:1, X (2004), gives clear notice to a person of ordinary intelligence of the conclusion. The statute’s plain language, read in conjunction with RSA 318-

demonstrable physical or psychological disorder, or drugs as an incident to current medical treatment of a type, hallucinogenic or other stimulant and depressant

This definition of “drug-dependent person” does not involve any level of

RSA 318-B:1, X. periodic or continuous basis. No person shall be

The plain language of the statute and our scienter case law support this

dependent” person as: accepted usage” (citation omitted)). RSA 318-B:1, X defines a “drug- arbitrary enforcement. We address each argument in turn. (b) Upon amphetamine-type, ataractic, barbituratemay be read in the context of related statutes, prior decisions, or generally

following administration of that drug upon a repeated physical dependence, or both, upon a controlled drug intelligence a reasonable opportunity to understand the conduct it prohibits. any person who has developed a state of psychic or

opportunity to understand the conduct proscribed and because it allows for need not be contained in the statute itself, but rather, the statute in question both because it fails to provide a person of ordinary intelligence a reasonable Porelle, 149 N.H. at 423 (stating that “[t]he necessary specificity

been drafted with greater precision.” State v. Porelle required in a penal statute, nor is a law invalid merely because it could have

We conclude that RSA 318-B:16 provides a person of ordinary

The defendant argues that the phrase “drug-dependent person” is vague

(quotation omitted).

wherever reasonably possible.”). In addition, “[m]athematical exactness is not enactment will be construed to avoid conflict with constitutional rights is void for vagueness as applied to her. p. 4 of what actions were proscribed and we reject her argument that RSA 318-B:16

Accordingly, we hold that RSA 318-B:16 gave the defendant adequate warning

misunderstanding the words or application of the statute is remote. “knowingly,” the likelihood that the defendant would be penalized for statute’s requirement that the defendant keep or maintain such a place

and opiates and the second from a heroin overdose. Especially in light of the

reasons stated above, we do not find the term “drug-dependent person” to be

premises, the first from acute intoxication by the combined effects of alcohol

dependent person” because the definition of that term is not clear. For the enforcing RSA 318-B:16 may have differing opinions as to who is a “drugenforcement. See Gatchell, 150 N.H. at 643. The defendant posits that officers Moreover, the record contains evidence that two males had died at the impermissibly vague because it authorizes or encourages discriminatory that drug is clearly within the realm of conduct proscribed by the statute. We now turn to the defendant’s contention that the statute, as written, is a premises to which heroin-dependent users resort for the purpose of using

controlled drugs resorted for the purpose of maintaining a place to which persons psychically or physically dependent upon

hold it is not unconstitutionally vague on its face. statute. Clearly, it is not. which drug-dependent persons resorted to use heroin. Keeping or maintaining Here, the indictment charged the defendant with maintaining a premises to

the conduct that is proscribed. Porelle 424. RSA 318-B:16 prohibited the defendant from knowingly keeping or concern that the statute does not provide adequate notice to citizens regarding her particular conduct was proscribed by the statute. See Porelle, 149 N.H. at whether the statute provided her with a reasonable opportunity to know that scienter of “knowingly.” See We now turn to the defendant’s as-applied challenge and determine

and since our reading of this statute indicates that it is sufficiently clear, we Accordingly, because the statute uses plain and easily understandable words, consumption of medication in one’s home or other location is prohibited by the individual being prosecuted for conduct that she could not understand. offense, the “knowingly” scienter requirement diminishes the risk of an location for the purpose of Colorado, 530 U.S. 703, 732 (2000). Applied to each material element of the

have previously held that a scienter requirement in a statute ameliorates the

Moreover, for each of its material elements, the statute requires a

a person of ordinary intelligence, as to whether the lawful and prescribed

requirement that drug-dependent persons must resort to the particular “drug-dependent.” RSA 318-B:1, X. Furthermore, RSA 318-B:16’s when judged in relation to the statute’s plainly legitimate sweep.” Chicago v.

in some unconstitutional manner. State v. Brobst

application to protected expression. Id exercising their rights for fear of criminal sanctions by a statute susceptible of Amendment rights if the impermissible applications of the law are substantial their speech or conduct is constitutionally protected, may well refrain from

arguments. Smith, 127 N.H. 433, 439 (198 p. 5 5) (citation omitted), we turn to the defendant’s rights, and provisions may be cured through judicial construction,” State v. face simply because of the possibility, however slight, that it might be applied that “[l]egislative enactments are construed to avoid conflict with constitutional doctrine is strong medicine to be employed only as a last resort. Id. Mindful

the defendant no greater protection than does the State Constitution under permits the facial invalidation of laws that inhibit the exercise of First purpose of the overbreadth doctrine is to protect those persons who, although statutes prohibiting “pure speech” and “conduct plus speech.” Id means which invade areas of protected freedom.” State v. Pike. The challenges of statutes that prohibit conduct, as well as challenges to those acceptable, both on its face and as applied in the defendant’s circumstances. Further, the substantial overbreadth doctrine applies to constitutional

“substantial overbreadth” precludes a court from invalidating a statute on its Morales, p. 5 527 U.S. 41, 52 (1999) (quotation omitted). The criterion of

under the State Constitution, we conclude that the Federal Constitution offers 4 p. 5 50-51 (1986) (quotation and citations omitted). “[T]he overbreadth doctrine

“A statute is void for overbreadth if it attempts to control conduct by

degree of judgment required by RSA 318-B:16, to the extent it exists, is II. Overbreadth

Constitution. enforcement requires the exercise of some degree of police judgment.” Porelle the same result under the Federal Constitution as we do under the State

Having evaluated and rejected the defendant’s vagueness challenges

conclude that RSA 318-B:16 provides such minimal guidelines and that the limitations on the definition of drug-dependent person noted above, we 149 N.H. at 424 (quotation and citation omitted). In light of the three

the legislature must establish minimal guidelines to govern law enforcement, discriminatory enforcement. We have previously determined that “[a]lthough term “drug-dependent person,” it does not raise the specter of arbitrary or However, even assuming arguendo that there were some lack of clarity in the unclear such that it would engender arbitrary or discriminatory enforcement. p. 6 RSA 318-B:16. conduct from which a citizen would refrain out of concern over application of and demonstrating).

legitimate application. That is, she has pointed to no substantial protected necessarily associated with speech (such as picketing

specifically addressed to speech or to conduct succeed against a law or regulation that is not

substantial amount of protected First Amendment conduct outside of its

conduct. Rarely, if ever, will an overbreadth challenge

by RSA 318-B:1, X, resort for the purpose of using controlled drugs. constitutional analysis of the defendant’s associational freedom argument.

under the First Amendment to the Federal Constitution. See

sense. See the record in this case how RSA 318-B:16, as we have construed it, prohibits a

State to sanction moves from pure speech toward the otherwise unprotected behavior that it forbids the enumerated locations as a place to which drug-dependent persons, as defined concern with “chilling” protected speech attenuates as

Hampshire Constitution. We will not, therefore, undertake a state That is not surprising, since the overbreadth doctrine’s

contravention of the rights the United States Supreme Court has articulated

substantial amount of protected associational activities in the constitutional Despite the defendant’s broad assertions, she has not demonstrated on associations.” Broadrick v. Oklahoma

318-B:16 proscribes particular conduct – keeping or maintaining one of the support of her position. She does not cite any provisions of the New id. Rather, RSA

anyone for, or prevent anyone from, associating with anyone else in specifically invoke a provision of the State Constitution. DeBenedetto v. CLD Amendment associational rights). In fact, RSA 318-B:16 does not punish 1997) (summarizing United States Supreme Court cases involving First

, e.g., People ex. rel. Gallo v. Acuna, 929 P.2d 596, 608-09 (Cal.

In terms of the Federal Constitution, RSA 318-B:16 does not prohibit a in statutes which, by their broad sweep, might result in burdening innocent

under both the State and Federal Constitutions.” “Overbreadth attacks have

defendant cites only the First Amendment to the United States Constitution in Consulting Eng’rs, 153 N.H. ___, ___, 903 A.2d 969, 982 (2006). Here, the

constitutional issue in the trial court; second, the appellant’s brief must a state constitutional analysis: first, the appellant must raise the state omitted). However, an appellant must fulfill two preconditions before triggering

. . . been allowed where the Court thought rights of association were ensnared

associational rights and that “[f]reedom of [a]ssociation is a protected liberty First, the defendant argues that RSA 318-B:16 interferes with overbreadth challenge. See p. 7 beyond First Amendment interests, so as to potentially support a facial

dependent individuals resort to use heroin, among other drugs.

requirement, RSA 318-B:16 imposes liability for knowingly not impose any such duty to inquire. Rather, through its heightened scienter inquire into traditionally private matters.” We disagree. RSA 318-B:16 does 7 application of RSA 318-B:16 would affect a protected constitutional liberty,

authorizes knowingly keeping and maintaining a place to which heroin- defendant’s arguments. the instant case, and neither the Fourth Amendment nor Part I, Article 19 noting that the defendant has not alleged a search or seizure of her home in

are drug dependent, whether or not they have a prescription and to otherwise below, the defendant has not satisfactorily explained how the operation or involved in Johnston (2) it infringes upon health care privacy interests. However, as discussed State Constitution and the Fourth Amendment to the Federal Constitution; and

maintaining a place used in the designated manner. Therefore, we reject the

inquiry of all individuals who use any type of drug to determine whether they automatically implicate the type of Part I, Article 19 search and seizure issue contends RSA 318-B:16 “essentially requires homeowners to conduct an With respect to “health care privacy” laws or interests, the defendant application to the circumstances in this case violated Part I, Article 19 of the

(1961) (involving insertion of “spike” microphone into building heating system case cited by the defendant, Silverman v. United States, 365 U.S. 505, 512

does not require a physical intrusion into the home and, therefore, does not v. Johnston, 150 N.H. 448, 455 (2004). However, operation of RSA 318-B:16 that RSA 318-B:16 is subject to a facial overbreadth challenge because: (1) its that the sanctity of the home is jealously guarded by a long line of cases. State prevent nuisances. See 58 Am. Jur. 2d Nuisances § 48 (2002). We recognize The State, in the valid exercise of its police power, generally may abate or case-by-case basis. See

Beyond First Amendment associational interests, the defendant argues

protected conduct, to the extent such applications exist, may be remedied on a 318-B:16 and conclude that applications of RSA 318-B:16 that infringe upon with speech. Accordingly, we reject the defendant’s facial challenge to RSA is not addressed specifically to speech or to conduct necessarily associated Virginia v. Hicks, 539 U.S. 113, 124 (2003) (quotation omitted). RSA 318-B:16 facts mirror the elements of the nuisance offense. See

p. 8 that was used by drug-dependent persons resorting to the premises. These nuisance existed. Third, it identified a particular controlled drug – heroin – period – June 9, 2001, to September 7, 2002 – during which the alleged 8

we do not see how the defendant can claim that [s]he would be unable to

prepare for trial.” State v. Dennehy same: whether it gives the defendant enough information so that [s]he can section of the applicable statute. The test of its sufficiency remains always the

her home – led to the nuisance alleged by the State. Second, it specified a time

necessary to the defendant’s preparation for trial. “Based on this indictment, dependent persons into the indictment is neither required by the statute nor dependent person.” See RSA 318-B:1, X. Inserting names of particular drug- 318-B:22 (2004). We also note that the statute contains a definition of “drugdefense. State v. French RSA 318-B:16; RSA

We have held that “an indictment is sufficient if it uses the words of the proper

the specific charges against her. French maintaining a particular premises to which drug-dependent persons resorted – pieces of information. First, it put the defendant on notice that her keeping or The indictment in the instant case provided the defendant with several State v. Burley persons for the purpose of using controlled drugs, including heroin.” acts by which the defendant may have committed the offense be identified. omitted). or maintained her home, which was resorted to by several drug dependent, 127 N.H. 425, 431 (1985) (quotation persons for the purpose of using controlled drugs in that Janet MacElman kept provides the defendant with enough information to adequately prepare her

Here, the language of the indictment tracked the language of the statute. address both arguments together.

contains the elements of the offense and enough facts to warn the defendant of indictment could have been more certain and comprehensive, but whether it

, 137 N.H. 286, 289 (1993). The question is not whether the

identified with factual specificity, there is no additional requirement that the

The test to determine the sufficiency of an indictment is whether it

the home; and (2) it does not specify the drug-dependent persons involved. We fails to allege that she committed a specific overt act, other than ownership of The defendant contends that the indictment is defective because: (1) it

between June 9, 2001, and September 7, 2002, the defendant did “knowingly her was insufficient under the State Constitution. The indictment charged that Finally, we turn to the defendant’s argument that the indictment against

III. Sufficiency of the Indictment p. 9 9

against the defendant was not insufficient under the State Constitution.

preparation can begin.” State v. Pelky

BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

Affirmed and remanded.

omitted). Thus, under these circumstances, we conclude that the indictment

knows about the offense, so that investigation, discovery and other trial invoke double jeopardy protection or educate [her] counsel on whatever [s]he