APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Habeas Corpus No. 182).
Hastie, Van Dusen and Adams, Circuit Judges. Adams, Circuit Judge, dissenting.
Sidney Clark, a state prisoner, has taken this appeal from the district court's denial of his petition for habeas corpus under 28 U.S.C. § 2254, following exhaustion of state remedies, to vacate two state convictions. Clark was sentenced to five years imprisonment on each conviction. Apparently, the sentences are running concurrently.
Two constitutional questions are presented: (1) Whether Delaware denied the accused constitutionally adequate notice that his conduct violated a criminal statute and (2) whether pre-trial publicity precluded a fair trial. Satisfied that the record justifies the district court's decision on the pre-trial publicity issue, we confine our discussion to the constitutional requirement of notice.
A grand jury indicted Sidney Clark in two bills which charged violations of 50 Del. Laws Ch. 299, 11 Del. C. § 635 (1955), an embezzlement statute. The legislature had enacted that section in 1955 to replace former 11 Del. C. §§ 635, 637-639, 641-643. In order to effect that desired substitution, the legislature repealed §§ 637-639, 641-643, and "amended" § 635 by striking all of its former language and inserting the newly desired language as a new § 635.
That new section provided as follows: "Whoever embezzles money or other property which may be the subject of larceny to the value of [One Hundred Dollars] ($100.00) or more . . .is guilty of a felony . . . ." Clark, a lawyer, was charged with misappropriating funds of a client that had been entrusted to him.
Clark moved to dismiss the indictment, contending that new § 635 was unconstitutionally vague for failure to define the term "embezzles" and that there was no common law definition for this purely statutory crime. The Delaware trial court agreed that new § 635 was void for vagueness, but did not dismiss the indictments. Instead, the judge held that, under established state law,*fn1 where a subsequent statute "amends" former statutory language, but in an unconstitutional fashion, then the earlier statute is revived if such a revival is consistent with the legislative purpose. Then, because he thought that the Delaware legislature surely intended to prohibit and punish the misappropriation of a client's funds, he deemed it more consistent with that intent to revive the old § 635 and to require, as he did, that prosecution proceed under it.*fn2
The state sought to appeal this interlocutory order, but the Delaware Supreme Court held itself without jurisdiction to decide the point at that stage. State v. Clark, Del. 1970, 270 A.2d 371. The Court suggested that the state appeal the questioned ruling, if necessary, when the proceedings below were final.
Following Clark's trials and convictions the Delaware Supreme Court affirmed, Clark v. State, Del. 1972, 287 A.2d 660, and the United States Supreme Court denied certiorari, 409 U.S. 812, 93 S. Ct. 139, 34 L. Ed. 2d 67. The Delaware Court rejected Clark's contention that trial and conviction under a conceptually revived statute after a preliminary ruling invalidating the predecessor statute under which the accused had been indicted, denied due process under the doctrine of Bouie v. City of Columbia, 1964, 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697. The court held that the revival doctrine served adequate notice that if new § 635 were ruled unconstitutional old § 635 would be effective. The state had not cross-appealed from the determination that new § 635 was unconstitutional.
It is in this context that we consider the narrow question whether the notice requirement of the due process clause permits a state, after ruling one of its criminal statutes overly vague, to apply that statute's superseded predecessor to the defendant in the very case which ruled the successor statute unconstitutional. We hold that this was not constitutionally permissible. Our analysis follows.
The alleged offense occurred and the accused was indicted at a time when, pursuant to legislative enactment, the State of Delaware had published and was holding out the new § 635 as its only proscription of such misconduct as the indictment charged. Delaware long ago recognized that embezzlement is not a crime at common law. State v. Brewington, 1910, 25 Del. 71, 78 Atl. 402. By force of the unreversed holding of the trial court, it is the rule of Clark's prosecution that new § 635 is void for vagueness. And by definition, an unconstitutionally vague statute is one that fails to give fair notice that particular conduct is proscribed by the state. See United States v. Harriss, 1954, 347 U.S. 612, 617, 98 L. Ed. 989, 74 S. Ct. 808; Connally v. General Construction Co., 1926, 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126. Thus, Delaware's own interpretation of new § 635 and its rejection of that section as a statutory basis for Clark's prosecution cause us to hold that new § 635 did not provide constitutionally adequate notice. Cf. Bouie v. City of Columbia, supra.
It follows that this conviction can be upheld only if the old § 635, the supersession of which had been legislatively declared and publicly announced, could continue to serve as notice of the criminality of Clark's conduct. To reach that conclusion, one would have to reason, first, that the new § 635 on its face gave adequate public notice of its own invalidity and, second, that the public, thus informed, was then put on further notice that the officially announced statutory repeal or supersession of old § 635 was legally ineffective.
In our view such reasoning is too tortured and too far removed from reality to satisfy the due process requirement that, at the time of an alleged offense, the accused shall have been on notice that his conduct was proscribed by the state's criminal law. Indeed, we are unable to surmount the first hurdle: that the new § 635 could serve as notice of its own invalidity. And without that notice there could be no occasion to consider old § 635 as possibly relevant.
The Supreme Court of Delaware was confronted with an analogous problem in State v. Dickerson, Del. 1972, 298 A.2d 761. The controversy in that case arose as a result of Furman v. Georgia, 1972, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726, which restricted the procedures which a state might use to impose the death sentence. Delaware's first-degree murder statute provided for only the death penalty, but a separate act, called the Mercy Statute, allowed a judge, at the discretionary recommendation of the jury, to impose life imprisonment. While Dickerson was awaiting trial, the trial judge certified to the Delaware Supreme Court the question of Furman's effect on Delaware's sentencing scheme. That court held that Furman had made the Mercy Statute unconstitutional, leaving the Delaware penalty for murder at mandatory execution. However, in the court's view, application of the mandatory execution provision could not be made to Dickerson himself, for at the time of his illegal conduct the Delaware community was not on notice that, for a first-degree conviction, capital punishment was mandatory.
Had the Court adopted in Dickerson's case the analysis which is now used to sustain the present conviction, it would have reasoned that Dickerson was on notice at the time of the homicide that the Mercy Statute might be found unconstitutional and, in that event, he would risk a mandatory death sentence under the separate first degree statute. Indeed, in one respect, that analysis would have been easier there than here because it would not have required reviving any superseded legislation. We think that Delaware's refusal to find fair notice of the mandatory death penalty in Dickerson was correct and that it points to a similar result as to notice of the revival of old § 635 here.
In addition, in this case the State of Delaware is in no position to argue that new § 635 gave adequate notice of its own invalidity. For the state strongly urged in opposition to the motion to quash the indictment that the new statute was valid. Indeed, it took the above mentioned abortive interlocutory appeal from the ruling of invalidity, although on Clark's appeal from his conviction the state did not see fit to present this issue. An even more striking indication that new § 635 gives no notice of its own invalidity is the fact that at least one judge of the Delaware Superior Court has held, after and contrary to the ruling at Clark's trial, that the new section is valid.*fn3
The dissenting opinion eschews this analysis. However, because it approaches our problem in a different way, it is difficult to bring our disagreement into sharp focus. It seems to place reliance upon the general Delaware doctrine concerning possible "revival" of an antecedent statute as principal justification for the conclusion that Delaware gave the public adequate notice that old § 635 retained vitality. We have pointed out that one can reach this conclusion only by positing adequate public notice, contrary to the state's own representation, of the infirmity of new § 635. But beyond that, the Delaware revival concept does not mandate automatic revival of the antecedent statute, as the dissent seems to assume. Rather, the Delaware revival doctrine is that, after finding an invoked statute invalid, a Delaware court is empowered to decide as a separate and additional question whether or not the statute's predecessor should be revived. Under the prior Delaware cases,*fn4 which the Delaware court followed here, the judge is required to decide for or against revival by exercising his judgment as to which course the legislature would prefer.
Thus, in our view, the position of the dissenting opinion can be maintained only if the public had adequate notice both that new § 635 was likely to be invalidated and that a judge would then choose to disinter old § 635 rather than letting it rest in peace. Such speculative anticipation of a series of future ...