Stone v. Godbehere, s. 89-15158

• Decision Date: 13 November 1989
• Docket Number: Nos. 89-15158,89-15159,s. 89-15158
• Citation: 894 F.2d 1131
• Parties: H. Norman STONE, Petitioner-Appellant, Cross-Appellee, v. R.G. GODBEHERE, Sheriff, Maricopa County; Attorney General of the State of Arizona, Respondents-Appellees, Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1131

894 F.2d 1131

H. Norman STONE, Petitioner-Appellant, Cross-Appellee, v. R.G. GODBEHERE, Sheriff, Maricopa County; Attorney General of the State of Arizona, Respondents-Appellees Cross-Appellant.

Nos. 89-15158, 89-15159.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 13, 1989. ^*

Decided Feb. 1, 1990.

H. Norman Stone, Phoenix, Ariz., for petitioner-appellant, cross-appellee.

J. David Rich, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees, cross-appellant.

Appeal from the United States District Court for the District of Arizona.

Before FARRIS, PREGERSON and RYMER, Circuit Judges.

FARRIS, Circuit Judge:

ISSUES

I. Was the injunction under which Stone was cited for contempt unconstitutionally vague?

II. Does the ex parte issuance of an injunction prohibiting the transfer of community property violate due process where the injunction is issued without notice, showing of cause, or judicial participation?

III. Did the district court err in finding that Stone was subjected to double jeopardy by the trial court's issuance of a second sentencing order that restricted the interpretation of the first sentence, but was issued before Stone commenced serving prison time?

IV. Did Stone exhaust his state remedies by submitting the double jeopardy issue only to the Arizona Supreme Court on discretionary review?

FACTS

Norman Stone appeals from the district court's partial denial of his petition for habeas corpus. Stone seeks relief from his conviction for contempt of court. The contempt order was issued as a result of the Arizona Superior Court's finding that Stone had violated a court injunction. The injunction was issued pursuant to Ariz.Rev.Stat.Ann. Sec. 25-315(A) when Stone's wife, Rachel, filed for dissolution of their marriage. Under the terms of the injunction, both Stone and his wife were prohibited from transferring or encumbering any community property, except for "necessities of life" or in the "ordinary course of business," pending the dissolution proceedings.

On April 6, 1988, the Superior Court found Stone guilty of three counts of criminal contempt and three counts of civil contempt. Stone was sentenced to three six-month prison terms, to be served consecutively, for three violations of the injunction: 1) a $38,011 withdrawal from a pension fund for the purchase of a California residence, 2) a $5,000 withdrawal, and 3) an $11,000 withdrawal.

The Arizona Supreme Court vacated the consecutive sentences because the total sentence exceeded six months without the benefit of a jury trial. The Superior Court resentenced Stone to three concurrent six month terms. On November 9, 1988, the Superior Court amended that sentence to eliminate the statutory "two for one" credit that would permit early release. Stone thereafter commenced serving his sentence, and on November 29, 1988, was denied his petition for habeas corpus by the Arizona Supreme Court.

Stone sought a writ of habeas corpus from the federal district court, naming the Maricopa County Sheriff and the Arizona Attorney General as parties. The district court found that the amended sentence violated double jeopardy, but dismissed Stone's claims that the injunction violated due process and was unconstitutionally vague. Consequently, Stone was given "two-for-one" credit, reducing his punishment to a three month sentence. Stone appeals on the vagueness and due process claims, and the State cross appeals, arguing failure to exhaust state remedies and error in voiding the amended sentence. ¹

DISCUSSION

I. UNCONSTITUTIONAL VAGUENESS OF THE INJUNCTION

Stone argues that Arizona statute Sec. 25-315(A), and the injunction which repeats the words of the statute verbatim, were unconstitutionally vague. The prohibitory language states:

The above named ... shall not:

A. Transfer, encumber, conceal, sell or otherwise dispose of the joint common or community property of the parties except in the usual course of business or for the necessities of life, without the written consent of both parties or the permission of the Court.

Stone contends that the phrases "necessities of life" and "ordinary course of business" failed to give him sufficient notice that his transfers and expenditures were prohibited by the injunction.

The language used in the injunction conveyed "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312-13, 1 L.Ed.2d 1498 (1957) (statutory vagueness). First, as to the transfer of funds to purchase the California residence, Stone claims that the increased value of the property proves that no attempt to dissipate the community assets occurred. However, Stone cannot deny that the transfer placed the property beyond the jurisdiction of the Superior Court. Because prohibiting such out-of-state transfers was one of the purposes of the statute, Lonergan v. Strom, 145 Ariz. 195, 700 P.2d 893 (Ct.App.1985), Stone should have been on notice that a substantial transfer of funds out of Arizona could not be made without prior approval. This is particularly true where the purpose of the out-of-state transfer is not within the core meaning of either exception.

The remaining two contempt citations for the $11,000 and $5,000 transfers create a more difficult question. Stone claims that the two transfers were spent on attorney's fees and personal expenses, respectively. The Superior Court record does not reveal a determination on how these transfers were spent. We find that Stone was on notice that the injunction prohibited his transfer of funds. Stone could resolve any question by a request to the court for permission to transfer. He made no request to the court. We therefore find no error in the contempt citation.

II. DEPRIVATION OF DUE PROCESS

Stone next argues that the injunction statute violates due process because it takes property without prior hearing, judicial supervision, or immediate post-taking protections. Stone's claim is one of procedural, not substantive due process. Cf. Bateson v. Geisse, 857 F.2d 1300, 1303 (9th Cir.1989) (substantive due process claim requires proof that the extent of interference with property rights was irrational or arbitrary). He does not challenge the state's right to make the determination that marital property rights should be restricted during the pendency of a dissolution action. Stone relies on Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and its progeny, in challenging the constitutionality of the injunction statute. His reliance is misplaced. We recognize that due process mandates some form of notice and hearing in order to deprive a property interest that is more than de minimis. Fuentes v. Shevin, 407 U.S. 67, 90 n. 21, 92 S.Ct. 1983, 1999 n. 21, 32 L.Ed.2d 556 (1972). The nature of the procedure required depends on a balance of: 1) the private interest at stake, 2) the risk of erroneous deprivation, and 3) the governmental interest and burden imposed by greater procedure. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

Under the Mathews balancing test, Stone was not deprived of procedural due process. A restraining order prohibiting the alienation of property does impose a significant injury. United States v. Crozier, 777 F.2d 1376, 1383 (9th Cir.1985). However, Stone's private interest is reduced, because in the domestic setting a spouse's property interest in community property is limited by his duties to the co-owner spouse. See Sample v. Sample, 152 Ariz. 239, 241, 731 P.2d 604, 606 (Ct.App.1986). Countering this interest is the interest of the state in preventing waste or dissipation of marital assets.

The deciding factor justifying the lack of traditional procedural protections in this case is that the risk of erroneous deprivation is minimal or nonexistent. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 13, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979) ("The function of legal process ... is to minimize the risk of erroneous decisions ... the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error"). Where the state has authorized a mandatory deprivation conditioned on an easily determined event, the minor risk of clerical error in that determination does not justify pre-deprivation hearings. Dixon v. Love, 431 U.S. 105, 113, 97 S.Ct. 1723, 1727-28, 52 L.Ed.2d 172 (1977) (mandatory suspension of drivers license upon third conviction requires no pre-deprivation hearing).

The Arizona statute is an automatic mandatory deprivation of property involved in a divorce proceeding. Stone claims that his property interests are inadequately protected without an immediate hearing to determine the "scope and necessity of the injunction." Id. 442 U.S. at 23-24, 99 S.Ct. at 2111-12. But the statute does not restrict the property right only when an injunction is "necessary"; it restricts the property right in every divorce case. Ariz.Rev.Stat.Ann. Sec. 25-315(A). Stone presents no evidence or allegation that there is any...