695 F.2d 1214 (9th Cir. 1983), 82-3010, Stoianoff v. State of Mont.

Docket Nº:82-3010, 82-3024.
Citation:695 F.2d 1214
Party Name:William STOIANOFF d/b/a The Joint Effort, Plaintiff-Appellant/Cross-Appellee, v. STATE OF MONTANA, et al., Defendants-Appellees/Cross-Appellants.
Case Date:January 07, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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695 F.2d 1214 (9th Cir. 1983)

William STOIANOFF d/b/a The Joint Effort,

Plaintiff-Appellant/Cross-Appellee,

v.

STATE OF MONTANA, et al., Defendants-Appellees/Cross-Appellants.

Nos. 82-3010, 82-3024.

United States Court of Appeals, Ninth Circuit

January 7, 1983

Argued and Submitted Sept. 9, 1982.

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Deirdre Boggs, Missoula, Mont., for Stoianoff.

Christian D. Tweeten, Asst. Atty. Gen., Helena, Mont., for State of Mont.

Appeal from the United States District Court for the District of Montana.

Before BROWNING, TUTTLE, [*] and REINHARDT, [**] Circuit Judges.

TUTTLE, Circuit Judge:

This appeal involves a pre-enforcement facial challenge to the constitutionality of the Montana Drug Paraphernalia statute, M.C.A. Secs. 45-10-101 et seq. The district court for the District of Montana found unconstitutional that portion of the "head shop" statute prohibiting the advertising of drug paraphernalia and upheld the constitutionality of the remainder of this statute. We vacate that portion of the district court's decision striking down the advertising prohibition, M.C.A. Sec. 45-10-106, because the plaintiff lacks standing to assert this claim, and affirm the other portions of the district court's opinion, 529 F.Supp. 1197.

I. BACKGROUND

Montana enacted its drug paraphernalia law on April 21, 1981, to take effect on October 1, 1981. 1 The Montana Act ("the Act") is patterned closely after the Model Drug Paraphernalia Act ("the MDPA" or the "Model Act") authored by the Drug Enforcement Administration of the United

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States Department of Justice. 2 State and local regulation of the sale of drug paraphernalia recently has become a widespread practice. At least 25 states have adopted legislation that to some extent reflects the provisions of the MDPA. 3

The MDPA and its progeny were designed to overcome the constitutional infirmities of early "headshop" legislation. These laws were written in the belief that the sale of drug paraphernalia encourages the use and sale of illegal drugs. The MDPA's drafters stated that:

[T]he availability of Drug Paraphernalia has reached epidemic levels. An entire industry has developed which promotes, even glamorizes, the illegal use of drugs, by adults and children alike. Sales of Drug Paraphernalia are reported as high as three billion dollars a year.

MDPA, Prefatory Note.

The constitutionality of these headshop laws has been frequently challenged. Several circuits have rendered opinions on the constitutionality of headshop statutes since the Supreme Court outlined a method for analyzing such pre-enforcement challenges in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Several other circuits proffered rulings on drug paraphernalia statutes before Flipside that apparently survive its analysis. The circuits generally have upheld "headshop" statutes, although some courts have chosen to excise constitutionally objectionable language. The Ninth Circuit is one of the few circuits yet to confront these issues.

William Stoianoff, d/b/a The Joint Effort, filed for declaratory and injunctive relief from enforcement of the Act on September 30, 1981. A temporary restraining order, staying enforcement of the Act, was entered on October 1, 1981, and remained in effect until the district court issued its opinion. The district court issued its opinion and order on December 30, 1981. In reviewing that opinion, we are bound by the Supreme Court's opinion in Flipside. While the Flipside opinion reviewed a licensing statute and in the instant case we are reviewing a series of criminal prohibitions, many of the principles set forth in Flipside are nonetheless applicable here. Most important among these is the method of analyzing pre-enforcement facial challenges.

II. APPROACH TO THE PRE-ENFORCEMENT FACIAL CHALLENGE

Appellant contends that the Act is overbroad and vague on its face. In evaluating this claim, we first reach the overbreadth issue and inquire whether the prohibitions of the Act reach a substantial amount of constitutionally protected conduct. After

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examining the overbreadth claim, we will turn to a consideration of appellant's vagueness arguments. The overbreadth and vagueness arguments will be examined only with respect to the acts prohibited by M.C.A. Sec. 45-10-104, because appellant alleged that he feared prosecution only under this section. We will then turn to appellant's equal protection claim. After considering these arguments, we shall discuss appellant's standing to object to the advertising prohibitions.

A. Overbreadth

To be overly broad, the Act must reach a substantial amount of constitutionally protected conduct. Flipside, 102 S.Ct. at 1191. In evaluating this claim, we must consider both the ambiguous and the unambiguous scope of the state's enactment. 102 S.Ct. at 1191, n. 6. It is, of course, solely within the province of the state courts to authoritatively construe state legislation. See United States v. 37 Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971). "When as here those courts have not spelled out the meaning of a statute, this Court must extrapolate its allowable meaning ... in a manner that affords the widest latitude to state legislative power consistent with the United States Constitution." Garner v. Louisiana, 368 U.S. 157, 174, 82 S.Ct. 248, 257, 7 L.Ed.2d 207 (1961) (Frankfurter, J., concurring). See also High Ol' Times v. Busbee, 673 F.2d 1225, 1230 (11th Cir.1982).

Appellant argues that the Act is overly broad because it infringes on his constitutionally protected right to operate a business and to earn a livelihood. Appellant contends that Flipside, because it considered only a licensing statute, did not reach this question. Appellant also argues that the expansive list of factors in M.C.A. Sec. 45-10-102 allows a trier of facts to consider such things as alternative and unpopular lifestyles, thus implicating appellant's rights of association and speech.

We decline to accept appellant's arguments. The Supreme Court, in Broadrick v. Oklahoma, 413 U.S. 601, 613-615, 93 S.Ct. 2908, 2916-18, 37 L.Ed.2d 830 (1973), indicated the strong policy against applying the overbreadth doctrine in a facial review. The only exception to this policy is in the First Amendment area. The appellant failed to make out such a claim with respect to M.C.A. Sec. 45-10-104. The only protected right arguably implicated by the Act is commercial speech. Even that "right," however, is not constitutionally protected in this instance because the statute is expressly directed at commercial activity promoting or encouraging illegal drug use. Thus, "[i]f that activity is deemed 'speech,' then it is speech proposing an illegal transaction, which a government may regulate or ban entirely. Central Hudson Gas & Electric Co. v. Public Service Comm'n, 447 U.S. 557, 563-64, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388, 93 S.Ct. 2553, 2560, 37 L.Ed.2d 669 (1973)." Flipside, 102 S.Ct. at 1192.

Appellant, moreover, has only a limited right to engage in prohibited sales in this case. As the Supreme Court noted in Flipside, "A retailer's right to sell smoking accessories, and a purchaser's right to buy and use them, are entitled only to minimal due process protection. Here, the village presented evidence of illegal drug use in the community. Regulation of items that have some lawful as well as unlawful uses is not an irrational means of discouraging drug use." Flipside, 102 S.Ct. 1192, n. 9 (citations omitted).

B. Vagueness

Upon finding no overbreadth, the Supreme Court instructs that a court next, "examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical

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applications of the law." Flipside, 102 S.Ct. at 1191 (footnote omitted, emphasis added).

Appellant challenges several provisions of the Act as unconstitutionally vague. While we share some of appellant's concerns, we disagree, in light of the pre-enforcement nature of appellant's challenge, that the law is "invalid in toto--and therefore incapable of any valid application--or is overbroad or vague--and therefore no person can properly be convicted under the statute until it is given a narrowing or clarifying instruction ...." Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 1223, 39 L.Ed.2d 505 (1974) (citations omitted).

The void for vagueness doctrine is designed to protect citizens from three consequences of unclear laws:

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to " 'steer far wider of the unlawful zone' ... than if the boundaries of...

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