State v. Takacs
| Decision Date | 11 April 1991 |
| Docket Number | Nos. 1,CA-CR,s. 1 |
| Citation | 169 Ariz. 392,819 P.2d 978 |
| Parties | STATE of Arizona, Appellant, v. Steve TAKACS and Cheryl Lynn Todd, Appellees. 89-1238, 1 89-1239. |
| Court | Arizona Court of Appeals |
The state of Arizona appeals from the trial court's dismissal of an indictment charging appellees Cheryl Lynn Todd and Steve Takacs (defendants) with multiple counts of promotion of gambling, a class 5 felony in violation of A.R.S. section 13-3303. We consider whether dismissal was required because section 13-3303 is unconstitutionally vague. We find that the statute is not unconstitutionally vague and therefore reverse.
The following evidence was presented to the grand jury. Takacs owned a bar called the Woodpecker Lounge in Glendale, Arizona. There were three video games located in the bar area. An entertainment room adjacent to the bar contained pool tables, dart boards, a crap table, a roulette wheel, and tables at which poker and blackjack were played. 1 The gaming tables belonged to Todd and several of her associates. The rules that governed the play at each table were established by the table's owner. The owners did not permit the bar's patrons to act as dealers or to operate the roulette wheel. One of the detectives who investigated the activities at the bar described the gambling as a "Las Vegas" style operation.
Todd normally dealt blackjack at her table, but she occasionally operated the roulette wheel when its owner was not present or needed a break. She and her associates placed all of the money that they won running the tables into a red toolbox. The detectives did not determine how the money was divided or whether Takacs received any of it.
Takacs owned the bar's three video games. Players could record their scores on these machines, and Takacs would give the player who had the week's highest score a receipt that entitled him or her to buy a twelve-pack of beer from the bar for a dollar.
Todd and Takacs were charged by indictment with multiple counts of promotion of gambling in Maricopa County Superior Court cause number CR 89-05032. Todd moved to dismiss the indictment on the ground that the applicable statutes were unconstitutionally vague. Takacs was permitted to join in this motion. The trial court granted the motion as to both defendants, and the state timely appealed. Its appeal in Takacs' case was designated cause number CR 89-1238 in this court, and its appeal in Todd's case was designated cause number CR 89-1239. We consolidated the appeals because they raised the same issues.
Section 13-3303 prohibits the promotion of gambling in general, but it permits the promotion of amusement, regulated, and social gambling. 2 The trial court found that section 13-3303 was unconstitutionally vague because the statutes that defined the amusement and social gambling exceptions to it, A.R.S. sections 13-3301(1) and 13-3301(6), were themselves unconstitutionally vague. 3 In reaching this conclusion, the court focused upon three phrases. It noted that section 13-3301(1) did not define the phrase "control to any material degree" with respect to amusement gambling and that section 13-3301(6) did not define the phrases "conducted as a business" and "compete on equal terms" with respect to social gambling. It further noted that the phrases were not defined anywhere in chapter 33. It held that in the absence of these definitions, section 13-3303 did not give the defendants fair notice of the conduct that it prohibited and did not establish sufficient standards to govern its application.
A legislative enactment is unconstitutionally vague if it does not give persons of ordinary intelligence a reasonable opportunity to learn what it prohibits and does not provide explicit standards for those who will apply it. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); State v. Tocco, 156 Ariz. 116, 750 P.2d 874 (1988). The requirement of establishing explicit standards is especially important in the context of criminal law because "[w]here the legislature fails to provide such minimal guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.' " Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605, 613 (1974)). Penal statutes also require more precision than civil statutes because "the consequences of imprecision are qualitatively less severe" where civil statutes are concerned. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362, 372 (1982).
However, due process does not require that a statute be drafted with absolute precision. Fuenning v. Superior Court, 139 Ariz. 590, 680 P.2d 121 (1983). There is a strong presumption that legislative enactments are constitutional, and a party who challenges the validity of a statute has the burden of overcoming that presumption. Tocco, 156 Ariz. at 119, 750 P.2d at 877. Thus, courts should give statutes a constitutional construction whenever possible. State v. Steiger, 162 Ariz. 138, 781 P.2d 616 (App.1989). Before declaring a statute unconstitutional, a court should consider whether a limiting construction would cure its constitutional infirmity. Id.
A statute is not unconstitutionally vague because one of its terms is not explicitly defined. Juvenile Appeal Nos. JS-5209 and JS-4963, 143 Ariz. 178, 692 P.2d 1027 (App.1984); Powell v. State, 624 S.W.2d 818 (Tex.App.1981). Nor is a statute unconstitutionally vague simply because it is susceptible to more than one interpretation. Walker v. Meehan, 194 Cal.App.3d 1290, 240 Cal.Rptr. 171 (1987) (). Moreover, it is not the responsibility of this court to declare invalid for vagueness every statute that it believes could have been written with greater precision. Tocco, 156 Ariz. at 119-20, 750 P.2d at 877-78; State v. Feld, 155 Ariz. 88, 745 P.2d 146 (App.1987), cert. denied, 485 U.S. 977, 108 S.Ct. 1270, 99 L.Ed.2d 482 (1988).
Our primary task in construing a statute is to identify and give effect to legislative intent. Martin v. Martin, 156 Ariz. 452, 752 P.2d 1038 (1988). We will look to the statute's historical background to ascertain this intent. Dupnick v. MacDougall, 136 Ariz. 39, 664 P.2d 189 (1983). We will also look to the policy behind the statute and to the evil that it was designed to remedy. Calvert v. Farmers Ins. Co., 144 Ariz. 291, 697 P.2d 684 (1985). Finally, we will read statutes relating to the same subject together and harmonize them. State v. Sweet, 143 Ariz. 266, 693 P.2d 921 (1985). In analyzing a void-for-vagueness challenge, we will also look to the settled common law meaning of the words used, to possible technical meanings, and to judicial decisions. See Walker, 194 Cal.App.3d at 1302, 240 Cal.Rptr. at 178.
In order to fairly consider the issues before us, we first examine the legislative history of the applicable statutes. Former A.R.S. sections 13-3301 through 13-3307 specifically prohibited a variety of enumerated games "played with cards, dice, or any other device," slot machines, banking or percentage games, lotteries and raffles, and the acceptance of bets or wagers. There were no statutory exceptions.
In 1987, the legislature passed a major revision to the gambling laws. The statutes that it enacted prohibited gambling in general, but specifically exempted amusement, regulated, and social gambling. These statutes were amended in 1988.
The House committee notes concerning the 1987 exemption for social gambling suggest that the legislature did not intend to legalize commercial poker parlors or casino or bookmaking operations by creating this exception. (Minutes of the House Committee on Judiciary, March 30, 1987.) They indicate that it intended to outlaw gambling that was conducted as a business, with people other than the players benefiting from the gambling activity or with the terms of the gambling favoring the "house." The purpose of creating a social gambling exception was to permit casual, friendly bets that were not conducted as a business.
The House notes to the 1988 amendment concerning amusement gambling indicate that the legislature intended this exception to apply to games in which skill rather than chance predominated. (Minutes of the House Committee on Judiciary, March 14, 1988.) The notes specifically refer to games such as skiball, pinball, traditional midway games, and games involving intellectual contests entered into in conjunction with the purchase of a product.
The statutes were again amended in 1990 after the defendants were indicted. The new amendments served to clarify and reaffirm the legislative intent underlying the 1987 and 1988 enactments. Laws 1990, ch. 173, § 2. Some of these amendments are pertinent to this case, and we will discuss them below.
In reviewing this legislative history, we observe that the gambling statutes are not a model of clarity. However, we also observe that it is not an easy task to draft gambling laws. It has long been recognized that "gamblers are ingenious in devising ways to evade the letter of the law when only specific games are prohibited." Walker, 194 Cal.App.3d at 1298-99, ...
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