Provo City Corp. v. Thompson

• Decision Date: 13 February 2004
• Docket Number: No. 20020307.,20020307.
• Parties: PROVO CITY CORPORATION, Plaintiff and Appellant, v. Sean THOMPSON, Defendant and Appellee.
• Court: Utah Supreme Court

86 P.3d 735

2004 UT 14

PROVO CITY CORPORATION, Plaintiff and Appellant, v. Sean THOMPSON, Defendant and Appellee.

No. 20020307.

Supreme Court of Utah.

February 13, 2004.

Vernon F. Romney, Provo, for plaintiff.

Dana M. Facemyer, Provo, for defendant.

On Certiorari to the Utah Court of Appeals

DURHAM, Chief Justice:

BACKGROUND

¶ 1 Defendant Sean S. Thompson was convicted under Utah Code section 76-9-201 for making repeated calls to his ex-wife, Carolyn, after she previously told him not to call back. The trial court found that the defendant telephoned Carolyn late at night eleven times within a one-hour time period. Carolyn told the defendant not to call several times that night, but the defendant continued his calls. As a result, Carolyn finally called the Provo City Police Department, and Officer Michael Bastian was dispatched to Carolyn's house. While Officer Bastian was at her house, the defendant called again. Officer Bastian answered the line, learned the defendant's location, and advised the defendant to remain where he was. Officer Bastian then went to Thompson's apartment, where he found Thompson in an intoxicated state, and cited him for telephone harassment.

¶ 2 At trial, Thompson's defense was that he had been calling to prevent Carolyn from killing herself, which he claimed she said she would do in a phone call she made to him earlier that night. However, the defendant admitted that he did not raise those concerns with Officer Bastian. Rather, according to Officer Bastian, he explained that he had been calling to find out whether his wife still loved him and because he wanted to see his daughter. The trial court found the defendant guilty of telephone harassment because, in violation of section 76-9-201(1)(b), the defendant had made repeated telephone calls with the intent to annoy Carolyn after she had asked him not to call.

¶ 3 On appeal, defendant challenged his conviction, arguing that section 76-9-201 was unconstitutionally overbroad and void for vagueness in violation of the First Amendment to the United States Constitution and the Utah Constitution. Provo City v. Thompson, 2002 UT App 63, ¶ 1, 44 P.3d 828. The court of appeals affirmed his conviction, holding that the portion of section 76-9-201(1)(b) that was most applicable to defendant's conduct was neither unconstitutionally overbroad nor void for vagueness. Id. at ¶ 23. The court did, however, hold that first portion of 76-9-201(1)(b) unconstitutionally overbroad and therefore invalid. Id. at ¶ 21. We granted Provo City's petition for review of the decision of the court of appeals insofar as it declared the first portion of Utah Code section 76-9-201(1)(b) unconstitutionally overbroad. Id.

¶ 4 The court of appeals' affirmance of defendant's conviction of telephone harassment under the unwanted calls provision of Utah Code section 76-9-201(1)(b) was correct. We also hold that the court of appeals improperly reached the issue of whether the first portion of 76-9-201(1)(b) is facially overbroad.

STANDARD OF REVIEW

¶ 5 Constitutional challenges to statutes present questions of law, which we review for correctness. Midvale City Corp. v. Haltom, 2003 UT 26, ¶ 10, 73 P.3d 334; I.M.L. v. State, 2002 UT 110, ¶ 8, 61 P.3d 1038.

ANALYSIS

¶ 6 At the time of the incident giving rise to this case, Utah Code section 76-9-201 read as follows:

(1) A person is guilty of telephone harassment and subject to prosecution in the jurisdiction where the telephone call originated or was received if with intent to annoy, alarm another, intimidate, offend, abuse, threaten, harass, or frighten any person at the called number or recklessly creating a risk thereof, the person:

(a) makes a telephone call, whether or not a conversation ensues;

(b) makes repeated telephone calls, whether or not a conversation ensues, or after having been told not to call back, causes the telephone of another to ring repeatedly or continuously;

(c) makes a telephone call and insults, taunts, or challenges the recipient of the telephone call or any person at the called number in a manner likely to provoke a violent or disorderly response (d) makes a telephone call and uses any lewd or profane language or suggests any lewd or lascivious act; or

(e) makes a telephone call and threatens to inflict injury, physical harm, or damage to any person or the property of any person.

(2) Telephone harassment is a class B misdemeanor.

Utah Code Ann. § 76-9-201 (1999) (current version at Utah Code Ann. § 76-9-201 (2003)).

¶ 7 At issue here is subsection (1)(b). Defendant's conviction was sustained under the second portion of subsection (1)(b), which prohibits a person with the requisite intent from making repeated telephone calls after being told not to call. For clarity of reference, we will refer to this portion as the unwanted calls provision. The court of appeals invalidated the first portion of subsection (1)(b), which prohibits a person with the requisite intent from making repeated telephone calls, whether or not a conversation ensues. We designate this portion the repeated call provision. Provo City now asks us to hold that the repeated call provision is not facially overbroad.

I. STANDING

¶ 8 Before we reach the merits of Provo City's argument, we must first decide whether the constitutional validity of the repeated calls provision was properly before the court of appeals. See Salt Lake City Corp. v. Prop. Tax Div. of Utah State Tax Comm'n, 1999 UT 41, ¶ 9, 979 P.2d 346

(treating standing as a threshold issue that must be determined before proceeding to further inquiries).

A. Basic Standing Requirements

¶ 9 To properly bring an issue before the court for adjudication, a party must have standing. "In essence[,] the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In order to meet the basic requirements of standing, a party must allege that he or she has suffered or will imminently suffer an injury that is fairly traceable to the conduct at issue such that a favorable decision is likely to redress the injury. See Jenkins v. Swan, 675 P.2d 1145, 1150-51 (Utah 1983)

(discussing three alternative ways to fulfill the requirements of standing). In addition, a party may generally assert only his or her own rights and cannot raise the claims of third parties who are not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); State v. Herrera, 1999 UT 64, ¶ 42, 993 P.2d 854 ("We have long held that `one may not allege jeopardy or injury to others in order to confer standing upon his own claims.'" (quoting York v. Unqualified Wash. County Elected Officials, 714 P.2d 679, 680 (Utah 1986))).

B. Facial Overbreadth as an Exception to Traditional Standing Requirements

¶ 10 When a challenge of statutory overbreadth is made, an exception to the basic standing requirements is available in the First Amendment context. "The First Amendment overbreadth doctrine ... represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court." State v. Haig, 578 P.2d 837, 841 (Utah 1978) (citation omitted). The facial overbreadth doctrine "gives a defendant standing to challenge a statute on behalf of others not before the court even if the law could be constitutionally applied to the defendant." Salt Lake City v. Lopez, 935 P.2d 1259, 1263 n. 2 (Utah Ct.App.1997); see also Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148 (2003)

; Bigelow v. Virginia, 421 U.S. 809, 815, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Broadrick, 413 U.S. at 612,

93 S.Ct. 2908 ("[T]he Court has altered its traditional rules of standing to permit—in the First Amendment area—attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.'" (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965))). Because this doctrine is "strong medicine," it should only be applied sparingly and as a last resort. L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (citation omitted).

¶ 11 The rationale for the facial overbreadth doctrine rests on the very real possibility that an overbroad statute will cause injury not only when applied to punish protected speech, but also in its "chilling effect" on protected activity. Individuals who are contemplating participating in protected speech may choose to avoid possible prosecution or litigation by refraining from the constitutionally protected activity. See Provo City Corp. v. Willden, 768 P.2d 455, 457 (Utah 1989)

. Because these individuals are never prosecuted, the overbroad statute goes unchallenged. To remedy this situation, a party may challenge a statute on the basis that it criminalizes protected speech even though that party's own conduct or speech is not constitutionally protected. I.M.L., 2002 UT 110 at ¶ 7, 61 P.3d 1038. The court may then invalidate the statute if (1) the statute "`reaches a substantial amount of constitutionally protected conduct,'" even if the statute also has a legitimate application, id. at ¶ 15 (quoting Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)), and (2) the statute is not "readily subject to a narrowing construction." State v. Jordan, 665 P.2d 1280, 1284 (Utah 1983) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)).

¶ 12 This exception, however, does not relieve the burden of the challenging party to meet the other requirements for standing. To have standing in the context of a facial overbreadth challenge, "...