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Act 50 Marie Beltran vs State.....

Native Hawaiian Women vulnerability

In part:

The ICA found the ordinance was not vague, relying on Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984), and People v. Scott, 26 Cal. Rptr. 2d 179 (Cal. App. Dep't Super. Ct. 1993). According to the ICA, "[t]he [Honolulu] definition is almost identical to one contained in a National Park Service regulation that was upheld [in Clark]" and in Scott where "a California appellate court upheld . . . a municipal ordinance that was similar to the one upheld in Clark[.]" 114 Hawai‘i at 119-20, 157 P.3d at 558-59. The ICA concluded that "most individuals have a common-sense understanding of what 'camping' is. . . . [T]he definition of 'camping' in [the Rule] provides sufficiently definite guidelines and examples . . . [and] objective standards to law enforcement officials . . . so as to prevent arbitrary enforcement[.]" Id. at 121, 157 P.3d at 560.

Similarly Respondent, in its answering brief, maintained that "[s]imilar camping ordinances have withstood unconstitutional challenges due to vagueness in other jurisdictions. In Scott, a camping ordinance, that had the same definition of camping as Section 3(5) was upheld, despite a constitutional challenge based on vagueness." (Citing 26 Cal. Rptr. 2d. at 182-83.) (Other citations omitted.) However, Respondent mischaracterizes the Scott ordinance as being the "same." In fact in Scott, the term living accommodation was expressly defined as "remaining for prolonged or repetitious periods of time not associated with ordinary recreational use[.]" Id. at 180 n.1. Scott described the ordinance as follows:

West Hollywood Municipal Code section 4801 . . . Subdivision 8(a) . . . states: "No person shall within the limits of any public park or recreation area: . . . (a) Camp at any time." The ordinance also provides the following definition of camping:

"'Camping' shall mean residing in or using a park for living accommodation purposes, as exemplified by remaining for prolonged or repetitious periods of time not associated with ordinary recreational use of a park with one's personal possessions (including but not limited to clothing, sleeping bags, bedrolls, blankets, sheets, luggage, backpacks, kitchen utensils, cookware, and similar material), sleeping or making preparations to sleep, storing personal belongings as above defined, regularly cooking or consuming meals, or living in a parked vehicle. These activities constitute camping when it reasonably appears, in light of all the circumstances, that a person(s) is using a park as a living accommodation regardless of their intent or the nature of any other activities in which they might also be engaging."

The . . . ordinance at issue in this case is very similar to, and possibly modeled after, a National Park Service regulation prohibiting unauthorized camping (with a specific ban on sleeping) examined by the United States Supreme Court in [Clark]. In that case, the Supreme Court upheld the regulation's ban on camping when it was challenged by demonstrators who wished to camp in a park across from the White House.

But as noted, the California ordinance, unlike the Honolulu ordinance, specifically defined "living accommodation." Significantly, in determining that "[t]he ordinance also provides adequate guidelines for the police sufficient to prevent arbitrary enforcement of the ordinance[,]" Scott relied, inter alia, on the more definitive limiting language that is not included in Rule 3(5):

The ordinance requires that the person's prohibited conduct be exemplified by their "remaining for prolonged or repetitious periods of time not associated with ordinary recreational use of a park with one's personal possessions" which include indicia of camping[.]

Finally, Scott held in contradiction to Kolender, that the defendants had to show the statute was vague in all of its applications:

So long as a statute does not threaten to infringe on the exercise of First Amendment or other constitutional rights, however, such ambiguities, even if numerous, do not justify the invalidation of a statute on its face. In order to succeed on a facial vagueness challenge to a legislative measure that does not threaten constitutionally protected conduct . . . a party must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that the law is impermissibly vague in all of its applications.

In Clark, the camping prohibition was similar to the instant case but did not include the limiting language "remaining for prolonged or repetitious periods . . . not associated with ordinary recreational use" in Scott:

Camping is defined as

"the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or . . . other structure . . . for sleeping or doing any digging or earth breaking or carrying on cooking activities."