Marvin Mandel, Governor                          1903

Rowan v. United States Post Office, 397 U.S. 728 (1970) citing as
authority United States v. Cardiff, 344 U.S. 174. "A statute is fatally
vague only when it exposes a potential actor to some risk or detri-
ment without giving him fair warning of the nature of the proscribed
conduct." Justice Douglas' statement of this principle in United
States v. Cardiff supra, is as follows: "..... The vice of vagueness in
criminal statutes is the treachery they conceal either in determining
what persons are included or what acts are prohibited. Words which
are vague and fluid (cf. United States v. L. Cohen Grocery Co., 255
U.S. 81) may be as much of a trap for the innocent as the ancient
laws of Caligula." See also State v. Sedacca, 252 Md. 202, 212-216.

The statute at issue raises serious constitutional question when
considered in light of this principle. It is readily apparent that the
scope of the statute is not limited to acts contributing to the delin-
quency of a minor. It makes unlawful unspecified conduct which would
bring or tend to bring a child within the provisions of the subtitle
which relates not only to a "Delinquent child" as defined in Section
70-1 (h) but also a "Child in need of supervision" 70-1 (1)—"Neg-
lected child" 70-1 (j), "Dependent child" 70-1 (k), and "Mentally
handicapped child" 70-1 (k).

The provision proscribing conduct which would "tend to" accom-
plish a result whether or not the result is achieved is constitutionally
suspect for vagueness. We feel that there is a serious question as to
whether this provision in a criminal statute is so vague as to meet
Chief Justice Burger's cited test in that it could be said that the
statute "exposes a potential actor to some risk or detriment without
giving him fair warning of the nature of the proscribed conduct."
A determination as to whether specified conduct would "tend to"
accomplish a result does not readily subject itself to any objective
measure so that a potential defendant could be reasonably apprised of
the criminality of his acts.

Accordingly, we are of the opinion that House Bill No. 149 is
of doubtful constitutionality.

Sincerely,

/s/ Francis B. Burch,

Attorney General.

House Bill No. 195—Montgomery County Alcoholic Beverage Laws

AN ACT to repeal and re-enact, with amendments, Sections
83(b), (c), and (d); 84 0b), (c), (d), and (e); 85(b); 86(h); and
102 (a) and (c) of Article 2B of the Annotated Code of Maryland
(1968 Replacement Volume AND 1970 SUPPLEMENT), title
"Alcoholic Beverages," subtitle "Hours and Days for Sale," to per-
mit the sale of alcoholic beverages by certain alcoholic beverage
licensees in Montgomery County until 1:00 o'clock a.m.; and to per-
mit the consumption thereof until 1:30 o'clock a.m.; AND FURTHER
TO PROVIDE FOR A REFERENDUM ON THIS ACT.