"lawfully required" was too subjective to provide fair notice because it left the
determination of what information a person must provide to the "unfettered
discretion of not only police officers, but virtually any public servant." Id. We also
held that the phrase "lawful excuse" was ambiguous, because it left a citizen to guess
whether his or her claim of privilege against answering would be considered a
"lawful excuse." Id. (citing U.S. CONST, amend. V).
To be sure, the inherent vagueness of the phrase "lawflil authority" might be
cured by language elsewhere in the statute or even in the common law. In State v.
11
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Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div.,^o. 95237-0
(Gordon McCloud, J., dissenting)
Smith, for example, we upheld a criminal harassment statute against a vagueness
challenge, despite its use ofthe phrase "without lawful authority." Ill Wn.2d at 15.
We reasoned that where (as in that case) the criminal activity defined by the statute
has a long common law history and significant statutory background to inform its
meaning, that history and background can cure the inherent indefmiteness in the
phrase "without lawful authority." Id. at 8-11,15; accord State v. Miller, 103 Wn.2d
792, 794-95, 698 P.2d 554 (1985)(using common law to inform the meaning of
assault with intent to resist a "lawful" arrest or detention).
But Smith took great care to assure that Richmond, Hilt, and White remain
binding precedent where there is an "absence of identifiable sources of law" that
might substantiate or define what constitutes "lawful" behavior. Smith, 111 Wn.2d
at 8; see also State v. Aver, 109 Wn.2d 303, 308, 745 P.2d 479 (1987)