City of Montgomery v. Zgouvas

• Decision Date: 29 September 2006
• Docket Number: CR-05-0039.
• Citation: 953 So.2d 434
• Parties: CITY OF MONTGOMERY v. Thyno ZGOUVAS.
• Court: Alabama Court of Criminal Appeals

953 So.2d 434

CITY OF MONTGOMERY v. Thyno ZGOUVAS.

CR-05-0039.

Court of Criminal Appeals of Alabama.

September 29, 2006.

Stephanie Smithee, Montgomery, for appellant.

William R. Blanchard, Montgomery, for appellee.

David Gespass and Thomas B. Diasio, Birmingham, for amicus curiae American Civil Liberties Union of Alabama and American Civil Liberties Union, in support of the appellee.

COBB, Judge.

Thyno Zgouvas was charged in Montgomery Municipal Court with violating Ordinance No. 1-9 of the City of Montgomery, which makes the commitment of a misdemeanor as defined by the laws of the State of Alabama within the city limits an offense against the City. Specifically, Zgouvas was accused of making harassing communications in violation of § 13A-11-8(b), Ala.Code 1975, which states:

"(b)(1) Harassing Communications. A person commits the crime of harassing communications if, with intent to harass or alarm another person, he or she does any of the following:

"a. Communicates with a person, anonymously or otherwise, by telephone, telegraph, or any other form of written or electronic communication, in a manner likely to harass or cause alarm.

"b. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication.

"c. Telephones another person and addresses to or about such other person any lewd or obscene words or language.

"Nothing in this section shall apply to legitimate business telephone communications.

"(2) Harassing communications is a Class C misdemeanor."

Zgouvas was convicted in Montgomery Municipal Court and appealed his conviction to the Montgomery Circuit Court pursuant to § 12-14-70, Ala.Code 1975. Zgouvas filed a motion to dismiss the charge, alleging that § 13A-11-8(b)(1), Ala.Code 1975, is vague and overbroad. The trial court granted Zgouvas's motion, and the City of Montgomery now appeals the trial court's order granting Zgouvas's motion.

Our Supreme Court recently reiterated the standard of review when determining whether a statute is constitutional:

"This Court `"should be very reluctant to hold any act unconstitutional."' Ex parte D.W., 835 So.2d 186, 189 (Ala. 2002) (quoting Ex parte Boyd, 796 So.2d 1092, 1094 (Ala.2001)). `[I] n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.' Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944) (emphasis added). This is so, because `it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law.' 246 Ala. at 9, 18 So.2d at 815 (emphasis added)."

McInnish v. Riley, 925 So.2d 174, 178 (Ala.2005).

Before making any determination whether § 13A-11-8(b)(1)a is constitutional, a court must first determine whether Zgouvas has standing to challenge the constitutionality of the statute.

"`Not all controversies . . . are justiciable. Justiciability is a compound concept, composed of a number of distinct elements. Chief among these elements is the requirement that a plaintiff have "standing to invoke the power of the court in his behalf."' Ex parte State ex rel. James, 711 So.2d 952, 960 (Ala.1998) (quoting Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990)). `Standing . . . turns on "whether the party has been injured in fact and whether the injury is to a legally protected right."' State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999)(quoting Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998)(Kourlis, J., dissenting)).

"`When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction. Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 626 (Tex.1996) ("Standing is a necessary component of subject matter jurisdiction"). See also Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) ("`standing "is perhaps the most important of [the jurisdictional] doctrines"'"); National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) ("Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation."); Romer v. Board of County Comm'rs of the County of Pueblo, supra, 956 P.2d at 585 ("standing is a jurisdictional prerequisite to every case and may be raised at any stage of the proceedings") (Martinez, J., dissenting); Cotton v. Steele, 255 Neb. 892, 587 N.W.2d 693 (1999). But see Hertzberg v. Zoning Bd. of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998) (standing is not jurisdictional).'

"State v. Property at 2018 Rainbow Drive, 740 So.2d at 1028."

J.L.N. v. State, 894 So.2d 751, 753 (Ala. 2004).

An exception to the aforementioned rule exists for questions of overbreadth in First Amendment speech-or-expression cases. As the United States Supreme Court has explained:

"It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable. See, e.g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798-799, and n. 15, 104 S.Ct. 2118, 2125, and n. 15, 80 L.Ed.2d 772 (1984); Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 2572, 96 L.Ed.2d 500 (1987). This exception from general standing rules is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court. See, e.g., New York v. Ferber, 458 U.S. 747, 772, 102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113 (1982); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985). Thus, the Court has permitted a party to challenge an ordinance under the overbreadth doctrine in cases where every application creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker, see Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940); Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965); Taxpayers for Vincent, 466 U.S., at 798, n. 15, 104 S.Ct., at 2125, n. 15, and in cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionally protected, see Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Jews for Jesus, 482 U.S., at 574-575, 107 S.Ct., at 2572."

Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 129-30, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992).

Thus, Zgouvas may challenge the constitutionality of the statute in question based on the overbreadth doctrine. However, because the vagueness doctrine is a separate and distinct concept, we must consider whether Zgouvas has standing to challenge the statute based on vagueness. A review of Zgouvas's motion to dismiss, the transcript of the hearing before the trial judge regarding Zgouvas's motion, and Zgouvas's brief to this Court indicates that Zgouvas is not challenging the constitutionality of the statute as it applies to him, but instead is basing his challenge on hypothetical situations involving "a person who uses the telephone to warn another of a fire, flood, storm or other apparent imminent hazard." (Appellee's brief, p. 12).¹ In fact, Zgouvas challenges this statute as being vague based on its use of the term "alarm."

However, upon reviewing the written deposition given by the complainant, we conclude that this is obviously a situation where Zgouvas "communicate[d] . . . in a manner likely to harass . . . ." § 13A-11-8(b)(1)a. The complainant alleged that she assisted Zgouvas while he was making a purchase for his girlfriend in the store where she was employed. The item apparently had to be ordered. The next day Zgouvas telephoned the store, and the complainant informed him the item had not arrived. Zgouvas then told her that he was coming by the store later to give her something. When he arrived, Zgouvas presented a bouquet of flowers and a letter for the complainant. Two days later Zgouvas telephoned the store repeatedly, and the complainant's coworkers took messages for her. That evening Zgouvas appeared at the store inquiring of the complainant about the status of the item ordered. In the conversation that ensued, the complainant told that Zgouvas that things needed to remain professional between the two as she had a boyfriend and Zgouvas apparently had a girlfriend. The next day the complainant telephoned Zgouvas and informed him that the item he had ordered had arrived. When Zgouvas arrived at the store to collect the item, he presented the complainant with a bottle of vodka, a bottle of cranberry juice, and another letter. The complainant later telephoned Zgouvas and told him not to call her or send her gifts again and that if he shopped in the store again someone else would have to assist him. Zgouvas then told the complainant to tell her boyfriend that "if he ever hurt [her] there was a Greek man following [her] around Montgomery trying to date [her]." (C. 10.) The complainant alleges that the following week Zgouvas followed her as she was leaving the shopping center where she is employed. A week later Zgouvas sent the complainant a large, expensive bouquet of flowers and a DVD of the movie Serendipity. The complainant also alleges that on numerous occasions Zgouvas would telephone her place of business and would hang up when...