Chief Judge Stephen Dillard, Georgia Court of Appeals. (Photo by John Disney/ALM)

Weighing in on a decades-old dispute among lawyers, judges and legal scholars as to the scope and utility of the “void for vagueness” doctrine, Georgia Court of Appeals Chief Judge Stephen Dillard made clear his disdain for the provision in a recent opinion.

“The void for vagueness doctrine is vague and not much of a doctrine,” wrote Dillard. “But it is the law of the land, and courts are charged with applying the doctrine as best they can.”

Remanding a case to a trial judge to weigh just such an issue, Dillard commiserated with his fellow jurist.

“In doing so, we do not envy the court’s task,” he wrote.

The doctrine essentially mandates that any law that could result in the loss of someone’s life, liberty or property must be clear enough for an ordinary person to understand what behavior is prohibited,

Dillard’s not-so-vague critique of the doctrine, rooted in the Fifth and Fourteenth amendments’ due process clauses, was accompanied by a lengthy footnote exploring its origins and constitutionai underpinnings—or lack thereof.

It included an observation by U.S. Supreme Court Justice Clarence Thomas describing the provision as “lacking any basis in the Constitution.”

As detailed in the opinion, the case involved a 2011 criminal citation Morgan County officials issued to Christine May, who was offering her Oconee Lake vacation house for short-term rentals. The county claimed she was in violation of a 2010 amended zoning code.

The case was stayed while May litigated a civil complaint against the county. She filed a motion to dismiss the criminal citation in 2015. May argued that her property was grandfathered in under the prior ordinance, which she also argued was unconstitutionally vague.

Following a bench trial, Morgan County Superior Court Judge Allison Burleson denied May’s motion, found her guilty of violating the current ordinance and sentenced her to 30 days in jail.

Dillard’s Oct. 20 opinion, written with concurrence of Judges William Ray II and Tilman “Tripp” Self III, analyzed the language of the pre-2010 ordinance and concluded it did prohibit short-term rental of the house.

But Burleson did not address May’s constitutional question, “much less issue a ruling on this argument,” Dillard wrote.

While the appellate court agreed May violated the earlier ordinance, if that ordinance was indeed void for vagueness “then it did not prohibit the short-term rental of her property,” Dillard wrote.

The county argued that May was convicted of violating the amended ordinance, therefore the constitutionality of the older ordinance was immaterial.

“But such glibness ignores the fact” that zoning laws must meet constitutional standards for due process and equal protection, Dillard wrote.

Thus, “we must vacate the trial court’s judgment and remand the case for the trial court’s consideration for May’s contention that that the ordinance is unconstitutionally vague as applied to her conduct,” Dillard wrote.

Dillard’s footnote cited the U.S. Supreme Court concurrence in 2015’s Johnson v. United States, 135 SCt 2551, which held that a law cannot be “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.”

Dillard noted Justice Thomas’ concurrence in that case.

“Simply put,” Thomas wrote, “our vagueness doctrine shares an uncomfortable similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.”

Morgan County’s attorney, Madison solo Christian Henry, said he was surprised May’s constitutional arguments factored into the opinion.

“My whole argument about this doctrine was that it was completely inapplicable in this case,” he said.

May’s attorney, C. Wilson DuBose of Madison’s DuBose Law Group, disagreed with Dillard’s observations on the doctrine.

“I think the vagueness doctrine requires some subjective judgment each time a court decides whether to apply it or not,” DuBose said.

“I don’t think it’s necessarily vague; like other situations, such as where a court decides whether there’s been an abuse of discretion, it doesn’t present a bright-line test. But it does provide a test that I think is probably about is good as the court should need.”

Particularly in criminal cases, a normal person should be able to tell whether an act is prohibited, DuBose said.

“The test itself is workable, but I would say the vagueness doctrine is soundly embodied in constitutional law, and I don’t think it’s going anywhere anytime soon.”