State v. Watson

• Decision Date: 03 July 2000
• Docket Number: No. 1 CA-CR 99-0342.,1 CA-CR 99-0342.
• Citation: 6 P.3d 752,198 Ariz. 48
• Parties: STATE of Arizona, Appellee, v. Verne L. WATSON, Appellant.
• Court: Arizona Court of Appeals

6 P.3d 752

198 Ariz. 48

STATE of Arizona, Appellee, v. Verne L. WATSON, Appellant.

No. -0342.

Court of Appeals of Arizona, Division 1, Department A.

July 3, 2000.

Elizabeth N. Olson, Assistant City Prosecutor, Phoenix, for Appellee.

Randall Callender, Phoenix, for Appellant.

OPINION

SULT, Judge.

¶ 1 Defendant Verne L. Watson appeals the Maricopa County Superior Court's affirmance of his Phoenix Municipal Court conviction for a violation of the City of Phoenix's "Neighborhood Preservation Ordinance" arising out of the condition of defendant's premises. Defendant appeals pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 22-375 (1990), alleging the unconstitutionality of the ordinance. Because we find that the ordinance is constitutional on its face, we affirm.

BACKGROUND

¶ 2 In October 1998, defendant was tried in Phoenix Municipal Court for a violation of chapter 39, article 2, section 39-7(A) (Supp. Apr. 30, 1998), of the Phoenix City Code. Section 39-7(A) prohibits visual blight and also prohibits the accumulation of garbage, debris, and the like on one's premises if the result is a health or safety hazard. Section 39-16(C) punishes a violation of section 39-7(A) as a class one misdemeanor.

¶ 3 The evidence showed that defendant's backyard was filled with dry vegetation, tires, scrap metal, an old barbecue grill, buckets, inoperable motor vehicles, auto body parts, wood stacked along the fence, barrels, and bicycle parts. Although defendant's backyard is fenced, the fence is less than six feet high and does not completely shield the yard and its contents from view. A city inspector testified that the accumulated material in defendant's yard constituted a fire and safety hazard.

¶ 4 The municipal court found defendant guilty and imposed a $2,500 fine with $2,300 to be suspended upon defendant's full compliance with the ordinance within four months. Defendant appealed the conviction to the superior court alleging that the ordinance was arbitrary and unreasonable and that it permitted authorities to take his property without just compensation. The superior court affirmed the judgment of the municipal court, and defendant appealed to this court. Defendant argues here that the ordinance violates substantive due process under both the United States and Arizona Constitutions and is overbroad. In his reply brief, defendant resurrects the argument he made to the superior court that the ordinance effects a taking of his property without just compensation. We do not address this latter argument because defendant did not raise the issue in his opening brief. See State Farm Mutual Automobile Insurance Co. v. Novak, 167 Ariz. 363, 370, 807 P.2d 531, 538 (1990)

.

ANALYSIS

¶ 5 Our jurisdiction over a case that originates in municipal court, is appealed to superior court, and then appealed to this court is limited by A.R.S. section 22-375 to whether the ordinance is constitutionally valid on its face. State v. Martin, 174 Ariz. 118, 120-21, 847 P.2d 619, 621-22 (1992). If the ordinance is facially valid, our inquiry ends as we have no jurisdiction to review its specific application to a defendant. State v. McLamb, 188 Ariz. 1, 4, 932 P.2d 266, 269 (1996).

Substantive Due Process

¶ 6 Defendant first challenges the ordinance on substantive due process grounds. Such a challenge asks a court to engage in a "substantive review" of the compatibility of the questioned law with the Constitution. John E. Nowak & Ronald D. Rotunda, Constitutional Law § 10.6, at 346 (5th ed.1995). In undertaking this task, an initial question for the court is the intensity of the review to which it should subject the legislation, a question that in turn depends on the nature of the individual right affected by the legislation.

¶ 7 In the substantive due process context, independent review with no deference to legislative judgment, or "strict scrutiny," is employed for legislation that significantly impinges on fundamental individual rights, and such legislation will be upheld only if the state proves that it is justified by a compelling state interest. See, e.g., Roe v. Wade, 410 U.S. 113, 153-56, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)

(finding a fundamental right to abortion decision and applying strict scrutiny). If a fundamental individual right is not implicated, the legislation is subject to a more relaxed review, usually to determine whether there is a "rational basis" for the legislation. This type of review involves significant deference to the judgment of the legislative body regarding both the propriety of governmental involvement in the area covered by the legislation and the reasonableness of the means chosen to achieve the legislative goals. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 728, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (declining to find a fundamental right to assisted suicide and applying rational basis review); see also Michael J. Phillips, The Nonprivacy Applications of Substantive Due Process, 21 Rutgers L.J. 537, 575-77 (1990) (discussing the various types of deferential, or "low-level," review methods employed by the Supreme Court in different substantive due process contexts). To successfully attack legislation subject to this type of review, the challenger must prove that the legislation lacks any conceivable rational basis. Heller v. Doe, 509 U.S. 312, 320-21, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993).¹

¶ 8 What is a fundamental right? A fundamental right has been defined as one that is " `deeply rooted in this Nation's history and tradition,' " or is so weighty as to be " `implicit in the concept of ordered liberty,' such that `neither liberty nor justice would exist if [it] were sacrificed.' " Bowers v. Hardwick, 478 U.S. 186, 191-92, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977)), and Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct. 149, 82 L.Ed. 288 (1937) (overruled on other grounds by Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)

). Many of the fundamental rights accorded citizens are included in the Bill of Rights. Beyond this specific enumeration, the Supreme Court has identified in the Constitution a fundamental right to privacy, manifested in such forms as the right to marriage, the right to procreation, the right to child rearing and education, the right to contraception, and the right of a woman to choose whether to have an abortion. Bowers, 478 U.S. at 190,

106 S.Ct. 2841 (listing cases establishing these rights as fundamental). It should be noted that this "privacy" right is not some broad, unrestricted right to be left alone. Rather, it is a more particularized concept of privacy, focusing on concerns "of the most fundamental sort" to the individual, concerns that implicate "autonomy with respect to the most personal of life choices" and "the intimate aspects of identity." Laurence H. Tribe, American Constitutional Law § 15-1, at 1302 (2d ed.1988).

¶ 9 Turning now to the instant case, defendant invokes this fundamental right to privacy, identifying "the sanctity and privacy of the home" as the interest at stake.² Although we agree that one's right to privacy in the home is, in appropriate circumstances, a fundamental right worthy of the highest degree of protection, we disagree with defendant that this is the right implicated in this case. Viewed in its proper context, defendant's request actually seeks recognition and protection of a right to keep an accumulation of debris in his yard. In effect, this amounts to a right to be completely free from governmental regulation of the use and occupancy of one's real property, a right that not only is not fundamental but does not exist. Cf. City of Phoenix v. Fehlner, 90 Ariz. 13, 17, 363 P.2d 607, 610 (1961)

(observing with regard to zoning laws enacted to alleviate urban blight that "[t]he concept that a man owns his property from the center of the earth to the limits of the sky to use as suits his own fancy is not now and has not ever been entirely true.").

¶ 10 We liken defendant's attempt to create a fundamental right to that made by the defendant in Fuenning v. Superior Court, 139 Ariz. 590, 680 P.2d 121 (1983). The Fuenning defendant attacked Arizona's drunk-driving law, reasoning that he had fundamental rights to travel and to maintain a driver's license and that the DUI statute unconstitutionally impacted those rights. Id. at 595, 680 P.2d at 126. The Arizona Supreme Court concluded that the defendant was mischaracterizing the rights at issue. Id. at 597, 680 P.2d at 128. The court noted that regardless whether defendant had a fundamental right to drive, and even if he had a "right" to drink, he certainly did not have a fundamental right to combine the two, the activity specifically addressed by the statute. Id.

¶ 11 Here too defendant has mischaracterized the right for which he seeks fundamental status. Defendant's asserted right, a right to accumulate debris in his yard, is not "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty." In short, it is not a fundamental right, and the ordinance therefore is subject to rational basis review.

¶ 12 Rational basis analysis looks at the ends sought to be achieved by the questioned legislation and the means employed to achieve those ends. Legislation is valid if the subject matter is within the state's power to regulate and if the means employed are reasonable. See Campbell v. Superior Court, 106 Ariz. 542, 546, 479 P.2d 685, 689 (1971)

. To establish that legislation violates substantive due process, the plaintiff must prove either that the objectives of the legislation are not proper for governmental involvement, see O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), or that the government's action as expressed in the legislation is clearly arbitrary and unreasonable,...