Bird v. State
| Decision Date | 22 August 1995 |
| Docket Number | No. 1,CA-CV,1 |
| Citation | 184 Ariz. 198,908 P.2d 12 |
| Parties | Jack BIRD and Charles Lofton Hollamon, Plaintiffs-Appellees, and The Honorable Carl Colle, Justice of the Peace, Pro Tem., Campe Verde Precinct, Defendant, v. STATE of Arizona, Real Party in Interest-Appellant. 94-0010. |
| Court | Arizona Court of Appeals |
This appeal requires us to decide whether the Arizona statute forbidding wagering on the outcome of an election runs afoul of constitutional freedom-of-speech protections. We hold that the statute, Ariz.Rev.Stat.Ann. ("A.R.S.") section 16-1015, is not unconstitutionally vague or overbroad. We reverse the superior court's ruling to the contrary.
On March 23, 1993, the state charged the plaintiffs/appellees Jack Bird and Charles Lofton "Loft" Hollamon with violating the statute prohibiting betting on the outcome of an election:
§ 16-1015. Election wagers; classification
A person who, before or during an election provided by law, knowingly makes, offers or accepts a bet or wager, or takes a share or interest in, or in any manner becomes a party to the bet or wager, or provides or agrees to provide money to be used by another in making the bet or wager, upon any contingency whatever arising out of such election, is guilty of a class 2 misdemeanor.
The charges were made after the following announcement appeared in the Verde Independent:
PUBLIC ANNOUNCEMENT
Jack Bird Challenges Loft Hollamon with a bet. Jack says he will wipe us out at the voting booth. Jack will pay $100 for each man in our group who gets more votes than his councilmen. Loft took him up on it, and will also pay $100 for each of his men that get less votes than Jack Bird's councilmen.
Jack Bird's councilmen are:
Tap Parsons
Pat Kaminsky
Marvin Reynolds
Woody Diehl
Jerry Taylor
Loft Hollamon's potential councilmen are:
Loft Hollamon
Norma Wolford
William Yates
Gary Thompson
Both agree to this challenge on December 12, 1992 and will be paid within twenty-four hours after the final counting of the votes of the February 2nd election.
Bird and Hollamon moved to dismiss the charges, arguing that section 16-1015 is unconstitutionally vague and overbroad. The Camp Verde Justice Court, the Honorable Carl Colle, Justice of the Peace pro tem., denied the motion. Bird and Hollamon then filed a petition for special action in the Yavapai County Superior Court, seeking an order of that court requiring the charges be dismissed.
In their petition, Bird and Hollamon argued that the statute was vague and overbroad, and that they were the victims of selective prosecution. They based the latter claim on the following facts. The September 22, 1993, issue of the Prescott Sun carried on its front page a story about the reelection of Prescott Mayor, Daiton Rutkowski. Next to the story was a photograph bearing this caption: The Prescott City Attorney, John R. Moffitt, referred the matter to the Coconino County Attorney, Terrence C. Hance, for possible prosecution. The Coconino County Attorney refused to prosecute. In a letter to the City Attorney, then Chief Deputy Coconino County Attorney Fred Newton wrote:
I have reviewed all the material provided and A.R.S. § 16-1015. It is my conclusion that no criminal charges be filed. There does not appear to be any criminal intent, and the costs of prosecution would far outweigh any public policy reason for filing charges.
Clearly, our decision to decline prosecution should not be considered as an endorsement for betting on elections. If the amount of the wager had been substantially more, then the interests of justice would require prosecution, as the statute prohibiting gambling on public elections has substantial merit.
At the hearing on the petition for special action, the plaintiffs argued that the statute should have been drawn more narrowly; that it could be improperly used to prosecute supposedly harmless bets, such as two people whose bet required the loser to push the other around the courthouse in a wheelbarrow. The superior court accepted jurisdiction and granted the requested relief. From the bench the judge stated his reasons for granting relief. He rejected the plaintiffs' contention about selective prosecution, and acknowledged that the "legislature has a legitimate interest in maintaining the integrity of free elections in this country and attempting to see to it that the elections are not in any way tainted...." He then stated:
So you understand clearly what I determined that I'm here to decide, counsel, I'm here to decide whether A.R.S. 16-1015 is constitutional, whether that statute violates perhaps Article II Section 6 of the Arizona Constitution, which it may or may not do; ultimately, though, whether it violates the First Amendment to the United States Constitution as applied to this case and the 14th Amendment, and that's what I'm here to decide.
One in reading the statute, which is relatively short, could infer, from one clause "or provides or agrees to provide money to be used by another in making the bet or wager" that the statute is designed to prevent serious gambling or money being exchanged by which an election might be perhaps influenced. When we're talking about the First Amendment to the United States Constitution, you better not sit around and infer....
Here we have a one-sentence statute, and it doesn't take a great deal of imagination to come up with dozens and dozens of ways that that statute can be violated in the favorite national pastime, the process of engaging in the favorite national pastime of citizens of the United States of America, namely politics. I'll betcha the bond election passes. I'll betcha it doesn't. You know. I'll come over and thin out your iris bulbs if Charlie wins the election. For goodness sake, it goes on and on, over-the-back-fence kinds of exchanges between people having nothing whatsoever to do with the election, indeed people who are not even registered voters.
This is the sort of thing that could be prosecuted in the juvenile court if a couple of second grade kids got together and bet on who is going to win the presidential election a couple years down the road. The examples could be--are legion and could become--and could just lead to silliness. But when you're talking about the First Amendment of the United States Constitution, you're talking about freedom of speech in a political arena such as this country is, you can't have statutes that so interfere with the free exchange of ideas on the books that they stifle the political process.
This statute is patently unconstitutional, and the relief requested in the petition for special action is granted.
The superior court issued a minute entry stating:
The Court states that it is not persuaded by the fact that a Prosecutor out of Coconino County chose not to prosecute the Mayor of Prescott for violation of A.R.S. Section 16-1015, that the Court is not here to decide the facts of the case. The Court acknowledges that the Legislature has an interest in maintaining integrity of free elections in this country, that the Court is here to decide whether A.R.S. Section 16-1015 is constitutional, and whether the statutes [sic] violated Article 2, Section 6 of the Arizona Constitution.
IT IS THEREFORE ORDERED that the relief requested in the Special Action is granted.
On December 13, 1993, the state filed a premature notice of appeal. 1 The court entered its formal order on January 18, 1994, stating:
IT IS HEREBY ORDERED granting the relief requested in the Special Action, to wit: A.R.S. § 16-1015 is unconstitutional; therefore, the charges alleging a violation of A.R.S. § 16-1015 are dismissed.
This final judgment having been entered, this court has jurisdiction pursuant to A.R.S. section 12-2101(B) and Rule 8(a), Ariz.R.P.Special Actions.
The plaintiffs argue that section 16-1015 is unconstitutionally vague and overbroad. Embedded in both claims is the argument that the statute infringes on their constitutionally-protected free speech rights, 2 although their vagueness challenge also presents a non-constitutional argument. 3
I. VAGUENESS AND OVERBREADTH
The United States Supreme Court has reiterated the right of individuals to engage in "the unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Brown v. Hartlage, 456 U.S. 45, 53, 102 S.Ct. 1523, 1529, 71 L.Ed.2d 732 (1982). The plaintiffs challenge A.R.S. section 16-1015 on the ground that it infringes on their First Amendment rights to publicize a local election.
The plaintiffs assert the statute is vague and overbroad, thereby having a "chilling effect" on free speech. Our supreme court has set forth the following distinction between vagueness and overbreadth:
A statute is too vague when it fails to give fair notice of what it prohibits. It is overbroad when its language, given its normal meaning, is so broad that the sanctions may apply to conduct which the state is not entitled to...
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