474 F.2d 814 (9th Cir. 1973), 72-1109, Anderson v. Nemetz

Docket Nº:72-1109.
Citation:474 F.2d 814
Party Name:Carl Johannes ANDERSON, Appellant. v. Walter C. NEMETZ, Individually and as Chief of the City of Scottsdale Police Department, et al., Appellees.
Case Date:January 24, 1973
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 814

474 F.2d 814 (9th Cir. 1973)

Carl Johannes ANDERSON, Appellant.


Walter C. NEMETZ, Individually and as Chief of the City of Scottsdale Police Department, et al., Appellees.

No. 72-1109.

United States Court of Appeals, Ninth Circuit.

January 24, 1973

Rehearing Denied Feb. 20, 1973.

Page 815

Paul G. Ulrich (argued), Roger W. Kaufman, of Lewis & Roca, Phoenix, Ariz., for appellant.

James G. Bond, Asst. Atty. Gen. (argued), Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for appellee.

Before ELY and GOODWIN, Circuit Judges, and FERGUSON, [*] District Judge.

Page 816

FERGUSON, District Judge:

This is an appeal from a final judgment dismissing an action brought under the Civil Rights Act, 42 U.S.C. § 1983, for declaratory and injunctive relief against further prosecution under a section of the Arizona vagrancy statute. We reverse and remand.

The undisputed facts reveal the following:

1. Arizona Revised Statutes § 13-991, subsec. 3 provides:

"The following are vagrants and shall be punished by imprisonment in the county jail for not to exceed ninety days:


* * *

"3. A person who roams about from place to place without any lawful business."

2. In 1967, appellant, a 20-year-old resident of Scottsdale, was arrested by two city police officers and charged under section three of the vagrancy statute.

3. He was taken to the police station, questioned, stripped and searched for narcotics. No evidence of any crime was found and he was released on $50 bond.

4. A complaint was filed against him, and a court trial was held in the Scottsdale City Court. The officers testified that they arrested appellant because they believed he was in a place where he should not be, he had no legal business being there, and he could give no satisfactory reason why he should be there.

5. Appellant's sole defense was the unconstitutionality of the statute. His motion to dismiss the prosecution was denied and he was found guilty.

6. He appealed to the Maricopa County Superior Court on the City Court trial transcript. That court denied appellant's motion to dismiss on constitutional grounds, affirmed the conviction, and returned the case to the City Court.

7. Appellant then appealed to the Arizona Court of Appeals, again challenging the constitutionality of the statute. The Court of Appeals dismissed the appeal, holding that the Superior Court had improperly affirmed the City Court judgment instead of conducting a de novo trial. State v. Anderson, 9 Ariz.App. 42, 449 P.2d 59 (1969).

8. Anderson again appeared in the Superior Court, and a trial was conducted on the basis of the City Court transcript. Again, he challenged the constitutionality of the statute. The Superior Court found appellant not guilty and exonerated his bond, without considering the constitutional issues presented.

9. Shortly thereafter, in 1969, appellant brought this action in the district court. The uncontroverted facts before that court reveal:

(a) Appellant is a Scottsdale resident.

(b) He desires to walk about the streets in Arizona without being subject to arrest for vagrancy based solely upon his presence on the streets.

(c) On many occasions he has walked from place to place without pursuing any business purpose, either lawful or unlawful, but merely for personal reasons.

(d) He intends to continue his walking.

(e) The law enforcement officers of Arizona will continue to enforce the statute against appellant for the same conduct which occurred at his original arrest.

(f) During 1967, 1968 and 1969, 384 arrests were made in Scottsdale under the statute.

(g) Over 90% of the arrests led to court proceedings.

(h) There have been no state appellate court or federal court proceedings in which the constitutionality of any part of A.R.S. § 13-991 has been determined.

10. During the pendency of the action in the district court, the Attorney General

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of Arizona asked the State Legislature to repeal the statute. The legislature refused.


The unconstitutionality of the statute on its face is plain. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Appellees concede that the statute is not constitutionally defensible and contend only that (1) appellant lacks standing to challenge its constitutionality, and (2) the federal courts should abstain from exercising jurisdiction.


Appellees assert that appellant lacks standing to challenge the statute because he is not presently under arrest. In Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969), the Supreme Court reaffirmed that no federal court has jurisdiction to hold any statute void for repugnance to the Constitution " except as it is called upon to adjudge the legal rights of litigants in actual controversies." The Court adopted the test set forth in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941):

"The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."

In Golden v. Zwickler, the plaintiff sought a declaratory judgment that the statute under which he was prosecuted for...

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