Murphy v. Matheson

• Citation: 742 F.2d 564
• Decision Date: 22 August 1984
• Docket Number: No. 82-1701,82-1701
• Parties: Vance MURPHY, d/b/a The Store, et al., Plaintiffs-Appellants, v. The Honorable Scott MATHESON, Individually and as Governor of the State of Utah, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 564

742 F.2d 564

Vance MURPHY, d/b/a The Store, et al., Plaintiffs-Appellants, v. The Honorable Scott MATHESON, Individually and as Governor

of the State of Utah, et al., Defendants-Appellees.

No. 82-1701.

United States Court of Appeals, Tenth Circuit.

Submitted on Briefs.

Decided Aug. 22, 1984.

Martin W. Custen, Marquardt, Hasenyager & Custen, Ogden, Utah, for plaintiffs-appellants.

Robert R. Wallace, Salt Lake City, Utah, for Governor Scott Matheson.

David Wilkinson and Jerry J. Kaufman, Salt Lake City, Utah, for defendant-appellee, Ted Cannon.

David L. Gladwell, Ogden, Utah, for defendant-appellee, Robert L. Newey.

Before SETH, Chief Judge, and BREITENSTEIN and HOLLOWAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

This case presents a pre-enforcement facial challenge to the constitutionality of Utah's Drug Paraphernalia Act, Utah Code Ann. Sec. 58-37a-1 to -6 (Supp.1983) (Utah Act). Plaintiffs are owners and operators of The Store in Ogden, Utah and The Village Idiot in Salt Lake City, Utah, which are businesses that sell a variety of smoking accessories. Plaintiffs charge that the Utah Act is unconstitutionally overbroad and vague, is not rationally related to a legitimate state interest, and infringes on due process guarantees. The district court upheld the Act's validity. We affirm in part and reverse in part.

I

The factual background

A.

In 1981, the Utah Legislature enacted the Utah Drug Paraphernalia Act ¹ in order "to discourage the use of narcotics by eliminating paraphernalia designed for processing, ingesting, or otherwise using a controlled substance." Utah Code Ann. Sec. 58-37a-2. The enactment is based on the Model Drug Paraphernalia Act (Model Act), ² drafted by the Drug Enforcement Administration of the United States Department of Justice. It took effect on July 1, 1981.

The Utah Act defines drug paraphernalia as "any equipment, product, or material used, or intended for use" with a controlled substance. Utah Code Ann. Sec. 58-37a-3. This general definition is followed by a list of twelve non-exhaustive examples of drug paraphernalia; each example reiterates the scienter requirement in the first part of the definition. Id. The Act then identifies thirteen non-exhaustive factors that a trier of fact should consider in determining whether a particular object constitutes drug paraphernalia. Id. Sec. 58-37a-4. Criminal liability is imposed for the possession, manufacture, delivery, and advertisement of drug paraphernalia. ³ Id. Sec. 58-

37a-5. Finally, drug paraphernalia is subject to seizure and forfeiture. Id. Sec. 58-37a-6.

B.

Plaintiffs brought suit under 42 U.S.C. Sec. 1983 and 28 U.S.C. Secs. 2201, 2202, seeking preliminary and permanent injunctive relief to enjoin defendants from enforcing the Act and seeking also a declaratory judgment that the Act is unconstitutional under the United States Constitution. An evidentiary hearing was held on plaintiffs' motion for a preliminary injunction, which was thereafter denied. A trial on the merits followed, with the evidence received at the preliminary injunction hearing being preserved and made part of the record.

The trial court later entered judgment in favor of defendants, ruling that the Utah Act "is neither unconstitutionally vague nor overbroad in violation of the United States Constitution nor does it violate the First Amendment rights of plaintiffs or other persons." I R. 132. The court found that the inclusion of "a high specific intent requirement" provides notice to the public of what conduct is prohibited; that the Act is not vague since it gives a person of ordinary intelligence a reasonable opportunity to know what kind of conduct is prohibited, so that he may act accordingly; that the various standards contained in the Act are sufficiently detailed and explicit so that they would not trap the innocent by failing to give fair warning; and that the Act provides sufficiently explicit standards so that those who enforce the Act are not likely to do so in an arbitrary and discriminatory manner. Id. at 131-32.

On appeal, plaintiffs' principal arguments for reversal are: (1) the Act is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment; (2) the Act is unconstitutionally overbroad by restricting the free flow of commercial and noncommercial speech, in violation of the First and Fourteenth Amendments; and (3) the Act's forfeiture clause violates the Due Process Clause because it does not provide for a hearing. We address the overbreadth and vagueness assertions first, mindful that:

In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then 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.

Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) (footnotes omitted).

II Overbreadth

Under the overbreadth doctrine, "[g]iven a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially infringes the First Amendment rights of other parties not before the court." Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980). This exception to the "traditional rules governing constitutional adjudication" is justified because of a "judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 610-12, 93 S.Ct. 2908, 2914-15, 37 L.Ed.2d 830 (1973).

Plaintiffs argue that the Utah Act is unconstitutionally overbroad by restricting the free flow of commercial speech. They say that the ban on printed advertising in Sec. 5 of the Act could (1) be used against advertisers or publishers who place ads in printed media for circulation outside the State; (2) prohibit Utah residents from receiving information about items deemed "drug paraphernalia" here which are available in other jurisdictions which do not prohibit their use; and (3) have a chilling effect on the advertising of legitimate objects. Brief of Appellants 29. They also contend that relevant factors (8), "National and local advertising concerning its use," and (9), "The manner in which the object is displayed for sale," in Sec. 4, improperly interfere with their own advertising, pointing out that they advertise their wares by display in their stores or by radio. Id. at vii, 27-28.

Plaintiffs' contention that the statute's printed advertising ban has an overbroad scope encompassing protected commercial speech rights of others has been foreclosed by the Supreme Court's decision in Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). ⁴ There the Court ruled that a merchandiser of drug paraphernalia did not have standing to assert the commercial speech rights of third parties because "the overbreadth doctrine does not apply to commercial speech." Id. at 497, 102 S.Ct. at 1192, citing Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 565 n. 8, 100 S.Ct. 2343, 2351 n. 8, 65 L.Ed.2d 341 (1980). In Central Hudson the Court explained that "[t]he overbreadth doctrine derives from the recognition that unconstitutional restriction of expression may deter protected speech by parties not before the court and thereby escape judicial review.... This restraint is less likely where the expression is linked to 'commercial well-being' and therefore is not easily deterred by 'overbroad regulation.' " 447 U.S. at 565 n. 8, 100 S.Ct. at 2351 n. 8 (quoting Bates v. State Bar of Arizona, 433 U.S. 350, 381, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810 (1977)).

In light of Flipside and other cases, we must hold that plaintiffs do not have standing to make a facial challenge to the statute claimed to infringe the commercial speech rights of others not before the court. Accord, Camille Corp. v. Phares, 705 F.2d 223, 227 (7th Cir.1983); Stoianoff v. Montana, 695 F.2d 1214, 1224 (9th Cir.1983); New England Accessories Trade Association, Inc. v. City of Nashua, 679 F.2d 1, 4 (1st Cir.1982).

Insofar as plaintiffs argue that relevant factors (8) and (9) interfere with their own advertising, which concededly is only by display or by radio, they would of course have standing to assert that their personal commercial free speech rights have been infringed. Those rights, however, are not constitutionally protected in this instance because the statute is directed at commercial activity promoting or encouraging illegal drug use. Therefore, "[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 Corp. v. Public Service Comm'n, 447 U.S. 557, 563-564 [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, 455 U.S. at 496, 102 S.Ct. at 1192; see also Camille Corp. v. Phares, 705 F.2d at 227 n. 2; New England Accessories Trade Association, Inc. v. City of Nashua, 679 F.2d at 3-4; Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213, 1217 (11th Cir.1982); Casbah, Inc. v. Thone, 651 F.2d 551, 564 (8th Cir.1981), cert. denied Plaintiffs also argue that the statute is unconstitutionally overbroad by restricting the free flow of noncommercial speech. They say that relevant factor (7), "Descriptive materials...