Constitutional Challenge to California Child Welfare Law

California's Welfare and Institutions Code § 300 is unconstitutionally void-for-vagueness under Johnson v. U.S. (2015), Sessions v. Dimaya (2018), and other recent U.S. Supreme Court cases striking residual definitions of "abuse.



Plaintiff Andrea C. Wood (“Wood”) brings a void-for-vagueness challenges to severable portions of the definitions of abuse contained in Welfare and Institutions Code §§ 300 (a), (b) and (c). For example, Wood alleges that a person of normal intelligence does not know what conduct is prohibited under the phrase:


“…or there is a substantial risk that the child will suffer serious physical harm”

Cal. Welfare and Institutions Code § 300(a)


Such statutory "residual clause" definitions of prohibited conduct have come under special scrutiny in recent cases before the United States Supreme Court, resulting in their invalidation as unconstitutional.


Johnson v. United States, (2015) 135 S. Ct. 2551 ("Johnson") held that a residual clause is unconstitutional if it is "so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement" (Johnson, supra, at 2553); and on that basis struck as void for vagueness a state statutory clause prohibiting behavior that:


“...otherwise involves conduct that presents a serious potential risk of physical injury to another.”

(Johnson, supra, at 2555-2556.)


We can see that the challenged and severable residual clause in W & I § 300(a) is essentially identical in meaning to the residual clause stricken as unconstitutionally void for vagueness in Johnson.


Apparently unaware of recent Supreme Court decisions, and citing Williams v. Garcetti, 5 Cal. 4th 561,570 (1993) (“Williams”), State moves to dismiss Wood’s challenge, on the grounds that the Statute “has already withstood a void-for-vagueness challenge.” Mot. 13:12-13. In previously finding that W & I § 300 was constitutional, Williams articulated the now-overturned doctrine of “any constitutional application”:


The starting point of our analysis is "the strong presumption that legislative enactments 'must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.”

Williams v. Garcetti, 5 Cal. 4th 561, 568, 20 Cal. Rptr. 2d 341, 343, 853 P.2d 507, 509 (1993), bolding added.


Williams, in affirming W & I § 300, clearly articulates what had come to be known as the “any constitutional application” doctrine, under which a law was deemed constitutional if it had any valid application at all. The subject of much criticism, this doctrine was first established by the Supreme Court in 1982, holding that a law is facially unconstitutional only if it “is impermissibly vague in all of its applications.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., (1982) 5 U. S. 489, at 495, 102 S.Ct. 1186. However, the Supreme Court has now overturned the prior "any constitutional application" doctrine.


Sessions v. Dimaya, (2018) 138 S. Ct. ("Dimaya") concurs with and elaborates on Johnson, supra, similarly striking a residual clause definition of abuse. In rejecting prior legal opinions that suggest that a court may not invalidate a statute for vagueness if it is clear in any of its applications, Dimaya held that both cases:


“...squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.” 576 U.S., at –, 135 S.Ct., at 2561.

Dimaya, supra, 138 S.Ct. 1204, 1214, fn 3; and see also Martin v. State (2018) 259 So.3d 33, at 740-741)


Therefore, this Court should take note of the constitutional “sea change” regarding a void-for-vagueness challenge to a residual definition of abuse, as ushered in by Johnson, supra, Dimaya, supra, and other recent cases. With this new view, Williams must no longer stand as a bar to litigating the constitutionality of the residual definitions of abuse found in W & I § 300.

© 2020 by Post Modern Justice Media Project