What two requirements must a law satisfy to survive a vagueness challenge?

The law must give ordinary people fair notice of what conduct is prohibited and must supply explicit standards that prevent arbitrary or discriminatory enforcement by officials.

Does internal police guidance cure an otherwise vague ordinance?

No. Unpublished enforcement guidelines cannot supply the fair notice or explicit standards that due process demands of the enacted text itself.

When does a vagueness challenge receive stricter scrutiny?

Stricter review applies when the enactment threatens to inhibit the exercise of constitutionally protected rights such as speech. Economic regulations carrying only civil penalties receive less stringent review.

Legal Dictionary

vagueness test

/VAYG-nuhs test/doctrine

Also known as: vagueness tests · void for vagueness

Written by attorneys — see sources below.

A constitutional doctrine under which a law is held invalid if its terms fail to give ordinary people fair notice of what conduct is prohibited or fail to supply explicit standards that constrain arbitrary and discriminatory enforcement.

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Common Examples

Attorney Speech Sanction Vacated

State bar counsel charged Violet Vang with violating a publicity rule after she told reporters that her client would present evidence of prosecutorial misconduct at trial. The disciplinary panel found the statement created a substantial likelihood of prejudice but could not identify which part of the rule the statement violated or why the safe-harbor clause for general descriptions did not apply. The court dismissed the charge because the rule left Vang without fair notice of the line between permissible and punishable speech.

Eminent Domain Ordinance Struck

The City of Norwood condemned Vincent Vale's commercial building under a statute allowing seizure of any property whose current use failed to meet an undefined standard of optimal community welfare. Vale challenged the ordinance, arguing that the vague criterion gave officials unchecked discretion to label any parcel blighted. The Ohio Supreme Court invalidated the provision because it supplied no objective benchmark that owners could consult before investing in their land.

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Key Cases Using This Term

City of Norwood v. Horney

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Design Review Denial Reversed

Vega Motors submitted building plans that complied with every numerical setback and height limit in the Issaquah code, yet the design commission rejected them for lacking sufficient visual harmony with surrounding structures. The commission members each applied their own subjective sense of appropriate aesthetics without reference to any codified standard. The court held the ordinance unconstitutionally vague because it left applicants unable to predict what design features would satisfy the commission.

Anderson v. City of Issaquah851 P.2d 744

M. Bruce Anderson, Gary D. LaChance, and M. Bruce Anderson, Inc. own property located at 145 N.W. Gilman Boulevard in the city of Issaquah. In 1988, Anderson applied to the City for a land use certification to develop the property. The property is zoned for general commercial use. Anderson desired to build a 6,800-square-foot commercial building for several retail tenants. After obtaining architectural plans, Anderson submitted the project to City departments for the necessary approvals. The process went smoothly until the approval of the Issaquah Development Commission was sought. This commission was created to administer and enforce the City's land use regulations. It has the authority to approve or deny applications for land use certification. The Development Commission reviewed Anderson's application for the first time at a public hearing on December 21, 1988. Commissioners commented that the facade did not fit with the concept of the surrounding area. They expressed concern about the building color and compatibility with the image of Issaquah. They suggested more depth to the building facade and redesign of the rear facade. At the conclusion of the meeting, the Development Commission voted to continue the hearing to give Anderson an opportunity to modify the building design. On January 18, 1989, Anderson returned with modified plans including a tile roof, Cape Cod gray color with Tahoe blue trim, and brick on the front facade. Commissioner Larson stated that the revisions to the front facade had not satisfied his concerns from the last meeting. Commissioner Larson then suggested that the facade can be broken up with sculptures, benches, fountains, etc. Commissioner Nash suggested that Anderson drive up and down Gilman and look at both good and bad examples of what has been done with flat facades. The Development Commission voted to continue the discussion to a future hearing. On February 15, 1989, Anderson presented further modified plans with added overhangs, more brick, wood trim, accent colors on the back, and additional trees. After Commissioner Steinwachs described design elements observed on Gilman Boulevard such as heavy use of brick, wood, and tile and modulation methods such as gables, bay windows, recesses in front faces, porches, rails, many vertical columns, and breaks in roof lines, the Development Commission denied the application. The denial cited four reasons including insufficient responsiveness and failure to achieve the visual effect sensitive to the unique character of the signature street. Anderson appealed the denial to the Issaquah City Council, which affirmed the decision by a 4 to 3 vote. Anderson filed a complaint in King County Superior Court thirteen days after the April 5, 1989 notice of action. The City interposed affirmative defenses alleging the complaint was filed one day past the deadline, that Anderson failed to name the Attorney General, and that the corporation should have been joined initially. Prior to trial these affirmative defenses were stricken on summary judgment. Following trial the court dismissed Anderson's complaint. Anderson had invested an estimated $250,000 in the project by the time of the denial.

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