STATE OF RIDGEWAY
SUPERIOR COURT FOR RIDGEWAY COUNTY
STATE OF RIDGEWAY;
-v-
PHIZKOD,
Defendant.
Case No. RSC-CM-2704
MOTION TO DISMISS
Presiding Judge: Hon. Robin5D
MOTION
Defendant PHIZKOD, by and through undersigned counsel, hereby moves this Court
pursuant to Rule 13(c) of the Ridgeway Rules of Criminal Procedure to dismiss Count Eleven of
the Amended Criminal Information, charging Attempted Murder under R.C.C. § 3.08, on the
ground that R.C.C. § 3.08 is unconstitutionally vague on its face and as applied to the Defendant,
in violation of the Due Process Clause of the Fourteenth Amendment to the United States
Constitution and Article I, §§ I and VI of the Constitution of the State of Ridgeway. In support
thereof, the Defendant submits the following Memorandum of Law.
MEMORANDUM OF LAW
I. INTRODUCTION
Count Eleven charges the Defendant with Attempted Murder under R.C.C. § 3.08, which
provides in its entirety: “Whoever attempts to kill another individual.” That is the complete text
of the statute. It contains no definition of “attempt”, no threshold act required to constitute
criminal liability, no mens rea specification, and no guidance whatsoever distinguishing mere
preparation from punishable conduct.
The void-for-vagueness doctrine, rooted in the Due Process Clause of the Fourteenth
Amendment, is binding on this Court and requires that every criminal statute give fair notice of
what conduct is prohibited and provide sufficient standards to prevent arbitrary enforcement.
R.C.C. § 3.08 satisfies neither requirement. Independently and additionally, Article I, §§ I, VI of
the Ridgeway Constitution commands that no person be deprived of liberty except by the laws of
the land: a guarantee that a statute with no definitional content whatsoever cannot satisfy. Count
Eleven must be dismissed.
II. GOVERNING LEGAL STANDARD
A. The Fourteenth Amendment
The Due Process Clause of the Fourteenth Amendment prohibits the enforcement of a
criminal statute that is unconstitutionally vague. This doctrine is binding on this Court as a
matter of federal constitutional law and applies regardless of how this Court construes
Ridgeway’s own constitution.
In Kolender v. Lawson, 461 U.S. 353, 357 (1983), the United States Supreme Court tied
together several pieces of case law to develop the governing two-pronged standard: a penal
statute must be defined with sufficient definiteness that (1) ordinary people can understand what
conduct is prohibited, and (2) it does not encourage arbitrary and discriminatory enforcement.
This formulation was reaffirmed in Skilling v. United States, 561 U.S. 358 (2010).
The doctrinal foundation was laid in Grayned v. City of Rockford, 408 U.S. 104, 108-109
(1972), where the Court held that 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.” The Court further held in Winters v. New
York, 333 U.S. 507, 515-16 (1948) that citizens cannot be required to guess at the meaning of a
penal enactment, and in Morissette v. United States, 342 U.S. 246 (1952) that where a statute
provides no definite meaning, courts cannot supply one. That obligation belongs exclusively to
the Legislature.
In Johnson v. United States, 576 U.S. 591 (2015), the Court confirmed that a statute is
void for vagueness even where some conduct clearly falls within it, so long as the statute as a
whole fails to provide an intelligible standard. In City of Chicago v. Morales, 527 U.S. 41 (1999),
the Court struck down an ordinance that vested unfettered enforcement discretion in officers with
no statutory principle to constrain its application.
B. Article I §§ I and VI of the Ridgeway Constitution
Separately and independently, the Ridgeway Constitution compels the same result from
its own text. Article I, § I guarantees that every person shall find “a certain remedy, by having
recourse to the laws [...] completely and without any denial; conformably to the laws.” Article I,
§ VI guarantees that “nor can any person be justly deprived of liberty, except by the laws of the
land”.
These provisions stand on their own. A statute that provides no intelligible standard of
conduct is not a “law of the land”, it is an open-ended grant of prosecutorial discretion. The
void-for-vagueness doctrine gives operational content to what Article I, § VI already commands
on its face, and it does so as an independent matter of Ridgeway constitutional law, separate from
and in addition to the federal floor established by the Fourteenth Amendment.
The Vermont Supreme Court’s interpretation of this identical constitutional text drawn
verbatim from Chapter I, Articles 4 and 10 of the Vermont Constitution of 1777 confirms this
reading. Vermont has construed “laws of the land” to require that a criminal statute define the
offense with sufficient certainty to inform a person of ordinary intelligence of the proscribed
conduct and to prevent arbitrary enforcement. State v. Cantrell, 151 Vt. 130, 133, 558 A.2d 639,
641 (1989). That Vermont’s highest court reached the same conclusion as Kolender from the
same constitutional text is persuasive confirmation that the Kolender standard correctly captures
what Article I, § VI of the Ridgeway Constitution independently demands.
III. ARGUMENT
A. R.C.C. § 3.08 Has No Ordinary Meaning Capable of Defining a Criminal Offense
The threshold question is what R.C.C. § 3.08 means. The word “attempts” is entirely
undefined in the Ridgeway Code. In ordinary usage it encompasses a spectrum from forming an
intent, to acquiring a weapon, to approaching a target, to raising a firearm, to discharging it and
missing. No ordinary person reading the statute could know which point on the spectrum triggers
criminal liability. That uncertainty is not a drafting gap amenable to judicial correction. Under
Morissette, the obligation to define the criminal act belongs to the Legislature. Where the
Legislature has declined to do so, the statute cannot stand.
The contrast with the surrounding homicide statutes makes this failure undeniable.
R.C.C. § 3.10, Murder in the Second Degree, contains three enumerated alternative definitions,
each specifying distinct mental states and conduct elements. R.C.C. § 3.07, Voluntary
Manslaughter, requires that death be caused “in the heat of passion.” The Legislature knows how
to draft a precise criminal statute. Its failure to do so in R.C.C. § 3.08 is not accidental. The State
may characterize this brevity as a deliberate choice to incorporate common law meaning
wholesale, but that argument fails for two independent reasons. First, the canon that legislatures
are presumed to legislate against a background of common law, recognized in Morissette, applies
only where the term in question carries a single, settled, universally accepted meaning.
“Attempt” does not meet that threshold.
American jurisdictions apply no fewer than four distinct tests for criminal attempt: the
substantial step test, the proximity test, the probable desistance test, and the res ipsa loquitur test.
Under identical facts, they reach different results. A term whose common law meaning varies by
jurisdiction provides no more notice than a term with no meaning at all, and the Defendant
cannot be expected to know which of four competing frameworks a Ridgeway court will apply
when the Legislature has declined to choose among them. Second, and in any event, the
void-for-vagueness doctrine specifically prohibits courts from supplying definitions the
Legislature omitted; that is the holding of Morissette. The fact a court could construct a workable
definition does not save the statute, as if it did, no statute could ever be void for vagueness
because courts can always construct a definition.
B. R.C.C. § 3.08 Fails to Provide Fair Notice
Under Kolender’s first prong and Winters, a criminal statute must give ordinary people
fair notice of what conduct is prohibited. R.C.C. § 3.08 fails this requirement entirely. It offers no
threshold act, no mens rea element beyond the undefined word “attempts,” and no limiting
principle of any kind. A citizen reading the statute cannot know whether purchasing a firearm
constitutes an attempt to kill, whether following a person constitutes an attempt to kill, or
whether raising a weapon but not discharging it constitutes an attempt to kill. The statute answers
none of these questions because it contains no definitional content from which answers could be
derived. This is precisely the guesswork that Winters prohibits and that Article I, § VI of the
Ridgeway Constitution independently forbids by requiring that deprivation of liberty conform to
“the laws of the land”.
C. R.C.C. § 3.08 Vests Unconstrained Discretion in Enforcement
Under Kolender’s second prong and Grayned, a statute must provide sufficient standards
to prevent arbitrary and discriminatory enforcement. R.C.C. § 3.08 provides none. Because
“attempts to kill” is entirely undefined, every actor in the criminal justice system must
independently determine on an entirely ad hoc basis what level of conduct satisfies the statute.
Two defendants who engage in identical conduct could be charged differently, convicted
differently, and sentenced differently, with no statutory principle ensuring consistency. Under
Morales, this standardless sweep is independently fatal. The Defendant faces a 20-minute term
of imprisonment on a charge defined by a five-word statute that refuses to constrain prosecutorial
discretion.
D. The Statute Cannot Be Saved By Narrow Construction
Even where a statute is vague, courts may sometimes save it through narrowing
construction, but only where the text provides a limiting principle that courts can identify and
enforce. Johnson foreclosed the argument that the existence of clear core applications saves the
statute as a whole. The text of R.C.C. § 3.08 provides no foothold for narrowing construction
whatsoever. It contains no definitions, no threshold act, no mens rea specification, and no
limiting language of any kind. To supply these elements judicially would not be to construe the
statute, it would be to rewrite it. That is the Legislature’s task, not this Court’s, and it cannot be
performed at the expense of a criminal defendant. Where no narrowing construction is available,
invalidation is the only permissible result.
The State may contend that facial invalidation requires showing the statute is
unconstitutional in all of its applications under United States v. Salerno, 481 U.S. 739 (1987).
That standard does not apply to vagueness challenges in the same way it applies to other facial
challenges. In Johnson v. United States, 576 U.S. 591, 602-03 (2015), the Supreme Court
explicitly held that the vagueness doctrine does not require a defendant to demonstrate
unconstitutionality in every conceivable application. The doctrine targets the standard itself, not
merely its application to particular conduct. Furthermore, even under Salerno, the Defendant
need only show that no set of circumstances exists under which R.C.C. § 3.08 provides
constitutionally sufficient notice, and a statute with no definitions, no threshold act, and no mens
rea specification satisfies that standard, because the absence of definitional content is a structural
defect that infects every application of the law equally.
IV. CONCLUSION
R.C.C. § 3.08 is unconstitutionally vague. It fails both prongs of the standard established
by binding federal constitutional law under Kolender v. Lawson and its progeny. It independently
fails the guarantees of Article I, §§ I and VI of the Ridgeway Constitution, which requires that no
person be deprived of liberty except by the laws of the land, a standard that a five-word statute
with no definitions, no threshold act, and no mens rea specification cannot satisfy. The obligation
to define the criminal offense belongs to the Legislature. It has not done so. Count Eleven of the
Amended Criminal Information must be dismissed with prejudice.
DATED: April 5th, 2026 Respectfully submitted,
/s/
v1oletelo1v, Esq.
Chief Public Defender
R. Bar No. 11104
Counsel of Record
