Michael Smith
P.O. Box 861
Thousand Palms CA 92276
760-808-4134; 541-476-8954; 760-808-1387; 760-251- 3572
This motion is http://www.lawyerdude.netfirms.com/7878.html and
http://www.lawyerdude.netfirms.com/7878.pdf
Complete list of Michael Smith motions is at http://www.lawyerdude.netfirms.com/msmith78.html
Municipal Court of California
1945 Hill Street, Los Angeles, California
The clerk dba under false color of law as
“The People”
v
Michael Smith, one of the actual people.
Case Number
Document Number: 7878 Version 1.002
Demurrer based on Vagueness.
Demand to Vacate Trial Date.
Demand to Vacate Plea.
Notice re Interlocutory Appeal.
Date: Thursday 28 September 2006
Time: 1:30 pm
Place: This division at 1945 Hill Street.
Notice of Motion and Partial Waiver of time.
At the venue designated in the caption (or at such other venue as the court shall designate) I will demur to the complaint as set forth herein. I waive my right to a speedy trial for those days necessary for me to effectuate this remedy. I hereby advise the court of my intent to file an interlocutory appeal/ application for writ of mandate should this court refuse to vacate the plea that it illegally imposed upon me. Although the federal courts will not generally interfere with a state court prosecution, my case fits within the exception of Dombrowski v Pfister (1965) http://www.lawyerdude.8m.com/dombrowski.html .
Signed ____________________ Michael Smith. Sunday, August 20, 2006
Table of Contents:
Reputation of 1945 Hill Street
Argument and Memorandum of Law Supporting Demurrer
The statute is fatally overbroad and fatally vague.
Table of Authorities cited herein:
U.S. Constitutional Clauses cited herein:
U.S. Supreme Court Cases cited herein:
9th Circuit Cases and other circuit case cited herein:
Federal District Court cases cited herein:
California Statutes cited herein:
Scholarly Treatises cited herein:
Appendix 1: Detailed Brief regarding the Doctrine entitled “Void for Vagueness”
I received a ticket from an MTA police officer for “unsafe lane change”. No complaint has been filed in this case. The clerk and judge of this court are the prosecutors, but I do not address that particular issue in this motion. On 21 July while my lawyer was on vacation, I appeared in this court explaining that he was on vacation. This court entered a “not guilty” plea for me. The judge in this court then lied to me stating that I must pay $315 before I could have a trial. My lawyer thereafter advised me correctly that I am statutorily entitled to release on my own recognizance. I now demand that this court-imposed unconstitutional plea be revoked so that I can litigate this demurrer. The statute is fatally vague and overbroad. There was insufficient probable cause to initiate a traffic stop. The officer said that he stopped me for violating this vague statute which fails to fairly and accurately apprise me of what is forbidden by this statute. Prosecution under this statute is prohibited by the due process clause of the 14th amendment.
Reputation of 1945 Hill Street
The oppressive nature of this court is expressed on the net: Link has been deleted. My own lawyer himself was abused in custody in this court and denied effective assistance of counsel.
Argument and Memorandum of Law Supporting Demurrer
The statute is fatally overbroad and fatally vague.
Table of Authorities cited herein:
U.S. Constitutional Clauses cited herein:
Due Process Clause of the 14th Amendement. 1 2 3
U.S. Supreme Court Cases cited herein:
American Net & Twine Co. v. Worthington, 141 U.S. 468 , 35 L. ed. 821, 12 Sup. Ct. Rep. 55
1
Aptheker v. Secretary of State, 378 U.S. 500 , 508-509 (1964). 1
Baggett v. Bullitt, 377 U.S. 360, 372 (1964) 1
Benziger v. U.S., 192 U.S. 38 (1904). 1
City of Mesquite v. Alladin's Castle, Inc., 455 U.S. 283 (1982). 1
Cline v. Frink Dairy Co., 274 U.S. 445, 47 S. Ct. 681 (1927) 1
Coates v. Cincinnati, 402 U.S. 611, 614 ( 1971). 1
Collins v. Kentucky (1914) Tobacco case. http://www.lawyerdude.netfirms.com/vague14.html 1 234 U.S. 634, 638 , 34 S. Ct. 924 [269 U.S. 385, 393] 2
Connally v General Construction (1926) 269 U.S. 385 http://www.lawyerdude.netfirms.com/vague26.html 1
2 3
Dombrowski v Pfister (1965) http://www.lawyerdude.8m.com/dombrowski.html 1 . 2
Dombrowski v. Pfister, 380 U.S. 479, 486 (1965) 1
Giaccio v. State of Pennsylvania (1966) 382 U.S. 399; 86 S.Ct. 518. 1
Gould v. Gould, 245 US., 151 (1917) 1
Grayned v. City of Rockford, 408 U.S. at 108-09 & n. 4 http://www.lawyerdude.netfirms.com/grayned.html 1
2
International Harvester Co. v. Kentucky, 234 U.S. 216, 221 , 34 S. Ct. 853 1
Karlan v. City of Cincinatti, 416 U.S. 924 (1974). 1
Marbury v. Madison (1803) http://www.lawyerdude.netfirms.com/marbury.html 1 5 U.S. (1 Cranch.) 137
2
NAACP v. Alabama, 377 U.S. 288, 307 (1964). 1
NAACP v. Alabama, 377 U.S. 288, 307 (1964). A vague statute may be overbroad if its uncertain boundaries leave open the possibility of punishment for protected conduct and thus lead citizens to avoid such protected activity in order to steer clear of the uncertain proscriptions. 1
Papachristou v. City of Jacksonville (1971) http://www.lawyerdude.netfirms.com/papachri.html 1 405 U.S.
156. Vague laws defeat the intrinsic promise of, and frustrate the essence of, a constitutional regime.
2 3
Rector, Etc., Of Holy Trinity Church v. United States (1892) http://www.lawyerdude.netfirms.com/vague92.html 1 143 U.S. 457; 12 S.Ct. 511 2
Sewell v. Georgia, 435 U.S. 982 (1978) 1
Shelton v. Tucker, 364 U.S. 479, 488 (1960). 1
Shuttlesworth v. Birmingham, 382 U.S. 87 , 90-91, 15 L. Ed.2d 176 (1965) http://www.lawyerdude.8m.com/5089.html 1 (Includes photograph of Reverend Fred Shuttlesworth) 2
Speiser v. Randall, 357 U.S. 513, 526 (1958). 1
United States v. Harriss, 347 U.S. 612, 617 ( 1954). 1
United States v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16,690. 1
Winters v. People of State of New York (1948) 333 U.S. 507; 68 S.Ct. 665. 1
Zwickler v. Koota, 389 U.S. 241, 250 (1967), quoting NAACP v. Alabama, 377 U.S. 288, 307 (1964). "Overbreadth, on the other hand, 'offends the constitutional principle that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” 1
9th Circuit Cases and other circuit case cited herein:
Rice v. United States, 4 C. C. A. 104, 10 U. S. App. 670, 53 Fed. 910. 1
U.S. v Eric Colin (9th circuit 2002) http://www.fu.gq.nu/colin.html 1 is binding precedent in this case. The term “as nearly as practicable” is impermissibly and unconstitutionally vague. I have searched the case file. There is no description of what I did that violates the law. Merely touching the lane divider line is insufficient justification to justify a traffic stop. That is the subject of a concurrent motion to suppress evidence. This Colin case is binding precedent in the instant case. This court has no discretion. They must dismiss my case. http://caselaw.lp.findlaw.com/data2/circs/9th/0150140p.pdf 2 As to what would make a lane change unsafe, this defective statute fails to warn me. 3
Federal District Court cases cited herein:
630 F.2d, at 1037 1
U.S. v. De Cadena, 105 F.Supp. 202, 204 (1952). 1
California Statutes cited herein:
California Vehicle Code 21658. Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply: (a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety. - Vehicle Code section 21658(a) in its entirety. This statute fails for the reasons enunciated in the plethora of case cited by the 9th circuit in U.S. v Eric Colin (9th circuit 2002) http://www.fu.gq.nu/colin.html 1 2
Scholarly Treatises cited herein:
The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960).
1
Although no complaint has been filed, the predicate offense would be Vehicle Code 21658(a) which reads in its entirety as follows:
21658. Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply: (a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety. - Vehicle Code section 21658(a) in its entirety.
This statute is unconstitutionally overbroad and cannot for the basis of a criminal complaint. Furthermore the complaint does not say what I did to violate that section. Furthermore there is no complaint.
U.S. v Eric Colin (9th circuit 2002) http://www.fu.gq.nu/colin.html is binding precedent in this case. The term “as nearly as practicable” is impermissibly and unconstitutionally vague. I have searched the case file. There is no description of what I did that violates the law. Merely touching the lane divider line is insufficient justification to justify a traffic stop. That is the subject of a concurrent motion to suppress evidence. This Colin case is binding precedent in the instant case. This court has no discretion. They must dismiss my case. http://caselaw.lp.findlaw.com/data2/circs/9th/0150140p.pdf As to what would make a lane change unsafe, this defective statute fails to warn me.
Statute 21658 denies the driver his constitutional right to due process by failing to adequately instruct him as to what constitutes violation of the law. A vague statute violates the due process clause of the 14th amendment. This concept is known as void for vagueness. Vagueness is a subject of both constitutional law and criminal law. It is taught in every law school in this country and has been for the past 50 years. Some leading case regarding vagueness are Grayned v Rockford and Connally v General Construction (1926) 269 U.S. 385
http://www.lawyerdude.netfirms.com/vague26.html Vagueness is discussed at the following two articles:
http://www.lawyer.gq.nu/vagueness.html (Reprinted in the Appendix to this brief) and
http://www.fu.gq.nu/vague2.html
In Connally a statute there was held to be fatally vague. The Supreme Court said:
The question whether given legislative enactments have been thus wanting in certainty has frequently been before this court. In some of the cases the statutes involved were upheld; in others, declared invalid. The precise point of differentiation in some instances is not easy of statement; but it will be enough for present purposes to say generally that the decisions of the court, upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them. - U.S. Supreme Court.
As for a more focused case regarding the very words used in this statute, a leading case pertaining to vagueness of the words “as nearly as practicable” is the case of U.S. v Eric Colin (9th circuit 2002) http://www.fu.gq.nu/colin.html
I have searched the case file. There is no description of what I did that violates the law. Merely touching the lane divider line is insufficient justification to justify a traffic stop. That is the subject of a concurrent motion to suppress evidence.
This Colin case is binding precedent in the instant case. This court has no discretion. They must dismiss my case.
http://caselaw.lp.findlaw.com/data2/circs/9th/0150140p.pdf
Appendix 1: Detailed Brief regarding the Doctrine entitled “Void for Vagueness”
Void for Vagueness. Fourteenth Amendment Annotations
This article is at http://www.lawyerdude.netfirms.com/vagueness.html
First annotation:
Connally vs. General Construction Co. (1926)
http://www.lawyerdude.netfirms.com/vague26.html 269 U.S. 385
The question whether given legislative enactments have been thus wanting in certainty has frequently been before this court. In some of the cases the statutes involved were upheld; in others, declared invalid. The precise point of differentiation in some instances is not easy of statement; but it will be enough for present purposes to say generally that the decisions of the court, upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them - Supreme Court in 1926 in Connally v Gen. Construction.
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well- recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
International Harvester Co. v. Kentucky, 234 U.S. 216, 221 , 34 S. Ct. 853; Collins v. Kentucky, 234 U.S. 634, 638 , 34 S. Ct. 924 [269 U.S. 385, 393] http://www.lawyerdude.netfirms.com/vague14.html ...
The dividing line between what is lawful and unlawful cannot be left to conjecture. The 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 the one conception of its requirements and the courts upon another.'
Rector, Etc., Of Holy Trinity Church v. United States (1892)
http://www.lawyerdude.netfirms.com/vague92.html 143 U.S. 457; 12 S.Ct. 511 :
"All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter." - Rector, Etc., Of Holy Trinity Church v. United States 143 U.S. 457; 12 S.Ct. 511 (1892)
Winters v. People of State of New York (1948) 333 U.S. 507; 68 S.Ct. 665:
"Men of common intelligence cannot be required to guess at the meaning of penal enactment. "In determining whether penal statute is invalid for uncertainty, courts must do their best to determine whether vagueness is of such a character that men of common intelligence must guess at its meaning. "Where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained." - Winters v. People of State of New York, 333 U.S. 507; 68 S.Ct. 665 (1948)
Giaccio v. State of Pennsylvania (1966) 382 U.S. 399; 86 S.Ct. 518:
"Law fails to meet requirements of due process clause if it is so vague and standardless that it leaves public uncertain as to conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case." - Giaccio v. State of Pennsylvania, 382 U.S. 399; 86 S.Ct. 518 (1966)
Gould v. Gould, 245 US., 151 (1917):
"In the interpretation of statutes levying taxes, it is THE ESTABLISHED RULE NOT TO EXTEND their provisions, by implication, BEYOND THE CLEAR IMPORT OF THE LANGUAGE USED, OR TO ENLARGE their operations SO AS TO EMBRACE MATTERS NOT SPECIFICALLY POINTED OUT"
Benziger v. U.S., 192 U.S. 38 (1904):
"This provision of the statute should be liberally construed in favor of the importer, and if there were any fair doubt as to the true construction of the provision in question, the courts should resolve the doubt in his favor. American Net & Twine Co. v. Worthington, 141 U.S. 468 , 35 L. ed. 821, 12 Sup. Ct. Rep. 55; United States v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16,690; Rice v. United States, 4 C. C. A. 104, 10 U. S. App. 670, 53 Fed. 910."
U.S. v. De Cadena, 105 F.Supp. 202, 204 (1952):
"The essential purpose of the "void for vagueness doctrine" with respect to interpretation of a criminal statute, is to warn individuals of the criminal consequences of their conduct. ... Criminal statutes which fail to give due notice that an act has been made criminal before it is done areunconstitutional deprivations of due process of law."
Hassett v. Welch (1938) 303 US 303, pp. 314 - 315, 82 L Ed 858:
" . . . .if doubt exists as to the construction of a taxing statute, the doubt should be resolved in favor of the taxpayer..."
Sewell v. Georgia, 435 U.S. 982 (1978):
As we said in Grayned v. City of Rockford (1972) 408 U.S. 104, 108 (1972): "It is a basic principle of due process that an enactment [435 U.S. 982 , 986] is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." See also Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Cline v. Frink Dairy Co., 274 U.S. 445, 47 S. Ct. 681 (1927); Connally v. General Construction Co., 269 U.S. 385 (1926).
Karlan v. City of Cincinatti, 416 U.S. 924 (1974):
"These cases all involve convictions under ordinances and statutes which punish the mere utterance of words variously described as 'abusive,' 'vulgar,' 'insulting,' 'profane,' 'indecent,' 'boisterous,' and the like. The provisions are challenged as being unconstitutionally vague and overbroad. The 'void for vagueness' doctrine is, of course, a due process concept implementing principles of fair warning and non-discriminatory enforcement. Vague laws may trap those who desire to be law-abiding by not providing fair notice of what is prohibited. Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); United States v. Harriss, 347 U.S. 612, 617 ( 1954). They also provide opportunity for arbitrary and discriminatory enforcement since those [416 U.S. 924 , 925] who apply the laws have no clear and explicit standards to guide them. Coates v. Cincinnati, 402 U.S. 611, 614 ( 1971); Shuttlesworth v. Birmingham, 382 U.S. 87 , 90-91, 15 L. Ed.2d 176 (1965) - http://www.lawyerdude.8m.com/5089.html (Includes photograph of Reverend Fred Shuttlesworth). Further, when a vague statute "abut[s] upon sensitive areas of First Amendment freedoms,' it 'operates to inhibitthe exercise of [those] freedoms.' Uncertain meanings inevitably lead citizens to 'steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked." - Grayned v. City of Rockford, 408 U.S. 104, 109 (1972), quoting Baggett v. Bullitt, 377 U.S. 360, 372 [1964 loyalty oath case], and Speiser v. Randall, 357 U.S. 513, 526 (1958)."
"Overbreadth, on the other hand, 'offends the constitutional principle that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." - Zwickler v. Koota, 389 U.S. 241, 250 (1967), quoting NAACP v. Alabama, 377 U.S. 288, 307 (1964).
A vague statute may be overbroad if its uncertain boundaries leave open the possibility of punishment for protected conduct and thus lead citizens to avoid such protected activity in order to steer clear of the uncertain proscriptions. Grayned v. City of Rockford supra, 408 U.S. at 109; Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). A statute is also overbroad, however, if, even though it is clear and precise, it prohibits constitutionally protected conduct. Aptheker v. Secretary of State, 378 U.S. 500 , 508-509 (1964); Shelton v. Tucker, 364 U.S. 479, 488 (1960)."
City of Mesquite v. Alladin's Castle, Inc., 455 U.S. 283 (1982):
" Grayned v. City of Rockford, 408 U.S. 104, 108 (emphasis [455 U.S. 283, 290] added) *fn12... [ Footnote 12 ] The Court of Appeals summarized the relevant authorities as follows: "A law is void for vagueness if persons `of common intelligence must necessarily guess at its meaning and differ as to its application . . . .' Smith v. Goguen, 415 U.S. 566, 572 n. 8, quoting Connally v. General Construction Co., 269 U.S. 385, 391 . See generally Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960). The offense to due process lies in both the nature and consequences of vagueness. First, vague laws do not give individuals fair notice of the conduct proscribed. Papachristou v. City of Jacksonville, 405 U.S. 156, 162 . Accord Grayned v. City of Rockford, 408 U.S. 104, 108 & n. 3. Second, vague laws do not limit the exercise of discretion by law enforcement officials; thus they engender the possibility of arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. at 108-09 & n. 4 http://www.lawyerdude.netfirms.com/grayned.html ; Papachristou v. City of Jacksonville (1971) http://www.lawyerdude.netfirms.com/papachri.html , 405 U.S. at 168-70. Third, vague laws defeat the intrinsic promise of, and frustrate the essence of, a constitutional regime. We remain `a government of laws, and not of men,' Marbury v. Madison (1803)
http://www.lawyerdude.netfirms.com/marbury.html 5 U.S. (1 Cranch.) 137, 163, only so long as our laws remain clear." - 630 F.2d, at 1037."
I, Michael Smith, served this motion in person upon the prosecutor in this case who is the judge in this case by serving upon the court clerk at the filing window in person or by mail (encircle on or the other) on this date. Signed _______________ Michael Smith. Monday 21 August 2006.