Anderson v. Nemetz

• Decision Date: 20 February 1973
• Docket Number: No. 72-1109.,72-1109.
• Citation: 474 F.2d 814
• Parties: Carl Johannes ANDERSON, Appellant. v. Walter C. NEMETZ, Individually and as Chief of the City of Scottsdale Police Department, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

474 F.2d 814 (1973)

Carl Johannes ANDERSON, Appellant. v. 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 February 20, 1973.

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.

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

Constitutionality

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.

Standing

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 distributing anonymous political handbills was unconstitutional. The leaflets had attacked a Congressman who had run for reelection but had since become a judge. The Court held that since it was most unlikely that the former Congressman would again run for Congress, it was highly doubtful that another occasion would arise when the plaintiff would again be prosecuted for his conduct.

The test is one of reality. Zwickler was prosecuted once, but because the Congressman who was the original target of the handbills would not again stand for reelection, it was not within the realm of reality that another prosecution would result under the statute.

In Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958), appellant refused to comply with a bus driver's order that he move to the rear of the bus. Thereupon two police officers boarded the bus and ordered appellant to move to the rear, get off, or be arrested. Appellant chose to get off. The Court held that

"we do not believe that appellant, in order to demonstrate the existence of an `actual controversy\' over the validity of the state statute here challenged, was bound to continue to ride the Memphis buses at the risk of arrest if he refused to seat himself in the rear of the bus. A resident of a municipality who cannot use transportation facilities therein without being subjected by statute to special disabilities necessarily has, we think, a substantial, immediate, and real interest in the validity of the statute which imposes the disability." 358 U.S. at 204, 79 S.Ct. at 179.

The use of the sidewalks of Scottsdale presents the same immediate and real controversy as does the use of the buses in Memphis.

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Court held that while one plaintiff had an "acute, live controversy" with the state because he had been indicted, three other plaintiffs, who sought an injunction against prosecution because they "felt inhibited" by the statute, did not have standing to maintain the action:

"If these three had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District Court had found this allegation to be true . . . then a genuine controversy might be said to exist. But they do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible. . . . Persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs in cases to enjoin a state prosecution. . . ." 401 U.S. at 42, 91 S.Ct. at 749.

Appellant Anderson's fears of prosecution by the state are not "imaginary or speculative." He has already been arrested once, and has endured four rounds of trial and appeals. The declared intention of the state to continue to enforce the statute against him, coupled with the 384 arrests over a three-year period in Scottsdale alone, provide a realistic basis for fear of prosecution, and serve to establish the "acute, live controversy" required for standing. Appellant also clearly has the "personal stake in the outcome of the controversy necessary to assure that concrete adverseness which sharpens the presentation of issues" detailed in Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968), and in Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L.Ed.2d 663 (1962).

In Boyle v. Landry, 401 U.S. 77, 80-81, 91 S.Ct. 758, 760, 27 L.Ed.2d 696 (1971), the Court denied standing because

"not a single one of the plaintiffs had ever been prosecuted, charged, or even arrested under the . . . statute . . . . The complaint contains no mention of any specific threat by any law enforcement official . . . to arrest or prosecute any . . . of the plaintiffs . . . ."

And in Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961), the Court held that standing was lacking because "the fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication." It is apparent that neither Boyle v. Landry nor Poe v. Ullman deprives the appellant of standing in the instant case.

We hold that the appellant has standing to challenge the statute. The threat of future arrest is immediate...