State v. Stummer
| Decision Date | 27 November 2007 |
| Docket Number | No. 1 CA-CR 06-0874.,No. 1 CA-CR 06-0877.,1 CA-CR 06-0874.,1 CA-CR 06-0877. |
| Citation | 217 Ariz. 188,171 P.3d 1229 |
| Parties | STATE of Arizona, Appellant, v. Hubert August STUMMER and Dennis Allen Lumm, Appellees. |
| Court | Arizona Court of Appeals |
Copple, Boehm & Murphy PC, By Scott E. Boehm and Andrew P. Thomas, Maricopa County Attorney, By James P. Beene, Deputy County Attorney, Phoenix, Attorneys for Appellant.
Richard J. Hertzberg, Phoenix, Attorney for Appellees.
Peter A. Gentala, Phoenix, Attorney for Amicus Curiae The Center for Arizona Policy.
¶ 1 The State appeals the trial court's dismissal of class one misdemeanor charges filed against the operators of two sexually-oriented businesses for selling adult magazines in the early morning hours in violation of Arizona Revised Statutes ("A.R.S.") section 13-1422(A) (2001).1 The State timely appealed the dismissals, and we have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1) (2003) and A.R.S. § 13-4032(1) (2001).
¶ 2 The State's consolidated appeal of the dismissals raises two issues. First, does the free speech provision of Article 2, Section 6, of the Arizona Constitution provide broader protection to sexually-explicit speech than the First Amendment to the United States Constitution? Second, does A.R.S. § 13-1422, as applied to sexually-oriented businesses that do not feature live entertainment, violate Article 2, Section 6, of the Arizona Constitution? We conclude that Article 2, Section 6, of the Arizona Constitution provides no more protection for sexually-explicit speech than does the First Amendment to the United States Constitution. We further hold that A.R.S. § 13-1422, as applied to sexually-oriented businesses that do not feature live entertainment, does not violate the free speech provision in the Arizona Constitution.
¶ 3 The State separately charged by direct information The Adult Shoppe and its operator, Hubert August Stummer, and Just for Fun and its operator, Dennis Allen Lumm, with three counts of violating A.R.S. § 13-1422, each a class one misdemeanor, by selling adult magazines in the early morning hours. Each of the Defendants filed an identical First Motion to Dismiss, arguing that Empress Adult Video and Bookstore v. City of Tucson, 204 Ariz. 50, 60, ¶ 21, 59 P.3d 814, 824 (App.2002), had declared the statute unconstitutional under Article 2, Section 6, of the Arizona Constitution with respect to adult businesses such as theirs, which they avowed did not feature live entertainment.
¶ 4 Each of the Defendants also filed an identical Second Motion to Dismiss, arguing that the legislature had insufficient evidence before it to impose the time restriction consistent with Article 2, Section 6, of the Arizona Constitution. The parties submitted extensive evidence in support of their respective positions on the legislative history.2
¶ 5 Both cases were transferred without objection to Judge James H. Keppel for all further proceedings relating to the motions to dismiss. After hearing argument on the motions, Judge Keppel dismissed the charges in both cases, finding that he was bound by the decision in Empress, which held that A.R.S. § 13-1422 was unconstitutional as to adult businesses that do not offer live entertainment. Accordingly, Judge Keppel granted Defendants' First Motion to Dismiss. Judge Keppel found it unnecessary to address Defendants' Second Motion to Dismiss. The State timely appealed the dismissals and this Court consolidated the appeals at the parties' request.
¶ 6 We review the constitutionality of a statute de novo. State v. Evenson, 201 Ariz. 209, 212, ¶ 12, 33 P.3d 780, 783 (App. 2001) (citing State v. Korzuch, 186 Ariz. 190, 192, 920 P.2d 312, 314 (1996)). We presume a statute constitutional, New Times, Inc., v Arizona Board of Regents, 110 Ariz. 367, 370, 519 P.2d 169, 172 (1974), and impose on the party challenging the statute the burden of overcoming this presumption. Kotterman v. Killian, 193 Ariz. 273, 284, ¶ 31, 972 P.2d 606, 617 (1999).
¶ 7 Article 2, Section 6, of the Arizona Constitution provides that "[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." The First Amendment to the United States Constitution is phrased differently, providing that "Congress shall make no law . . . abridging the freedom of speech, or of the press." Under certain circumstances, our constitutional provision may give broader protection than does the First Amendment to the United States Constitution. See Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm'n, 160 Ariz. 350, 354-55, 773 P.2d 455, 459-60 (1989). "The scope of the difference, however, has never been defined and we have recognized that the Arizona Constitution does not provide greater protection of speech in every circumstance." Salib v. City of Mesa, 212 Ariz. 446, 453-54, ¶ 24, 133 P.3d 756, 763-64 (App.2006).
¶ 8 In Empress, a panel of this Court held that the restriction on hours of operation imposed by A.R.S. § 13-1422 on businesses that sell sexually-explicit material, but do not offer nude dancing, did not survive scrutiny under Article 2, Section 6, of the Arizona Constitution, because it was not "the least restrictive means" of curbing the negative effects of the adult speech. 204 Ariz. at 59-60, ¶ 21, 59 P.3d at 823-24. In contrast, the court held that as applied to expressive conduct such as nude dancing the Arizona Constitution provides no greater protection than the First Amendment. Id. at 62, ¶ 29, 59 P.3d at 826.
¶ 9 Empress identified the applicable First Amendment time, place, and manner restrictions, as requiring that the statute "be narrowly tailored to serve the government's legitimate, content-neutral interests." Id. at 56, ¶ 10, 59 P.3d at 820 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). The court noted that a content-neutral time, place, or manner restriction satisfies the federal standard as long as it "promotes a substantial government interest that would be achieved less effectively absent the regulation." Id. at 56-57, ¶ 10, 59 P.3d at 820-21 (quoting Ward, 491 U.S. at 799, 109 S.Ct. 2746) (quoting U.S. v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)). The court also acknowledged that the First Amendment does not require that such a regulation "be the least restrictive or least intrusive means" of promoting the government's content-neutral interests. Id. at 57, ¶ 10, 59 P.3d at 821 (quoting Ward, 491 U.S. at 798, 109 S.Ct. 2746).
¶ 10 Empress concluded, however, that a restriction on adult speech passes muster under the free speech provision of the Arizona Constitution only if it is narrowly tailored to a greater degree than required under the United States Constitution, and, in fact, is the "least restrictive means" to achieve the content-neutral purpose. 204 Ariz. at 57, ¶ 13, 59 P.3d at 821.3 For this conclusion, it relied on language in Mountain States, 160 Ariz. at 358, 773 P.2d at 463, specifically the court's reference to "the more stringent protections of the Arizona constitution," and its direction that time, place, and manner restrictions must be crafted "with narrow specificity so as to affect as little as possible the ability of the sender and receiver to communicate." Empress, 204 Ariz. at 57, ¶ 13, 60, ¶ 22, 59 P.3d at 821, 824 (quoting Mountain States, 160 Ariz. at 358, 773 P.2d at 463) (emphasis added by Empress). Empress interpreted the emphasized language as "adopt[ing] a different and more restrictive standard for regulations affecting speech than the federal standard enunciated in Ward." Id. at 57, ¶ 13, 59 P.3d at 821.4 The initial question before us is whether we agree with Empress that our supreme court has adopted a "least restrictive" requirement for Article 2, Section 6.
¶ 11 In Mountain States, our supreme court vacated a corporation commission order requiring the telephone company to block access to its ScoopLines5 unless the customer pre-subscribed, on the ground that the commission "did not choose its regulation with narrow specificity." 160 Ariz. at 358, 773 P.2d at 463. The court recognized that under both the First Amendment and the Arizona Constitution time, place, and manner restrictions could be imposed, but required that such regulations be content-neutral, serve a significant governmental interest, and leave open ample alternative channels of information. Id. at 357-58, 773 P.2d at 462-63 (citing Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)).
¶ 12 Mountain States noted, however, that the governing federal law was unclear at that time whether a regulation must be the "least restrictive alternative" to achieving the government interest. Id. at 358, 773 P.2d at 463 (citations omitted). It noted that it had previously held that such restrictions "must be drawn with narrow specificity" under the First Amendment. Id. (quoting New Times, 110 Ariz. at 371, 519 P.2d at 173). Accordingly, "we must hold the same under the more stringent protections of the Arizona Constitution." Id.
¶ 13 The court then reasoned that the telephone company, a public utility, was not exempt from such regulation simply because it was in the communications business. Id. In that context, the court noted that the commission could impose reasonable time, place, and manner regulations, but "with narrow specificity so as to affect as little as possible the ability of the sender and receiver to communicate." Id. (citing New Times, 110 Ariz. at 371, 519 P.2d at 173). The supreme court then vacated the commission order requiring pre-subscription to all ScoopLines, reasoning that the telephone company's...
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State v. Stummer
...State appealed, arguing that Empress was wrongly decided. ¶ 4 A different panel of the court of appeals agreed and reversed. State v. Stummer, 217 Ariz. 188, 195, ¶ 26, 171 P.3d 1229, 1236 (App.2007). We granted review to resolve the conflict between Empress and the court of appeals opinion......