Vill. of Ruidoso v. Warner

• Decision Date: 15 February 2012
• Docket Number: No. 30,591.,30,591.
• Citation: 274 P.3d 791,2012 -NMCA- 035
• Parties: VILLAGE OF RUIDOSO, Plaintiff–Appellee, v. David WARNER, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

2012 -NMCA- 035

274 P.3d 791

VILLAGE OF RUIDOSO, Plaintiff–Appellee,

v.David WARNER, Defendant–Appellant.

No. 30,591.

Court of Appeals of New Mexico.

Feb. 15, 2012.

Bryant, Schneider–Cook Law Firm, P.A., Daniel A. Bryant, Angie K. Schneider–Cook, Ruidoso, NM, for Appellee.

David Warner, Ruidoso, NM, Pro Se Appellant.

OPINION

SUTIN, Judge.

{1} On behalf of a non-profit foundation that he created after the death of his son, Defendant David Warner stationed himself and his pickup truck in a public street intersection in the Village of Ruidoso, New Mexico. He handed out flyers that solicited funds to support his foundation. Posters in the bed of the truck identified the foundation and asked for donations. Defendant was arrested and convicted in municipal court of soliciting without a permit contrary to Ruidoso, N.M., Code of Ordinances ch. 58, art. III, § 58–84(b) (1998). He appeals from a repeated conviction in a de novo appeal in the district court. He presents constitutional challenges to Section 58–84(b). We reverse Defendant's conviction.

BACKGROUNDThe Ordinance at Issue

{2} Section 58–84(b) reads:

Solicitation on public property. The practice by itinerant vendors or solicitors of going onto public property for the purpose of soliciting money or for the sale of goods, wares[,] and merchandise or for the purpose of disposing of goods, wares[,] and merchandise shall be considered a nuisance and punishable under this Code, except as otherwise provided by law or authorized by the council.

Section 58–84 (use of streets, sidewalks, parks, and village-owned public property) is found under Article III (offenses against property) of Chapter 58 (offenses and miscellaneous provisions) of the Village's Code of Ordinances.

{3} The parties consider three other Village ordinances to be related in the constitutional analyses. These ordinances are found in Division 2 (special licenses) under Article II (business registration and licenses) of Chapter 26 (businesses) of the Village's Code of Ordinances. Ruidoso, N.M., Code of Ordinances ch. 26, art. II, div. 2, § 26–62 (1998) (definitions) defines “solicitation” to include requesting contribution of funds for charitable or other noncommercial purposes. It defines “solicitor” as any person who engages in solicitation along “any streets[.]” Ruidoso, N.M., Code of Ordinances ch. 26, art. II, div. 2, § 26–75 (1998) (amended Jan. 26, 2010) (solicitation) makes it unlawful for any solicitor to engage in solicitation without first obtaining a license from the Village, but it exempts “[p]ersons, organizations [,] and other entities who are not otherwise required by the provisions of this article to obtain business registrations and/or licenses[.]” Section 26–75(b)(2) (1998) (prior to 2010 amendment). And Ruidoso, N.M., Code of Ordinances ch. 26, art. II, div. 2 § 26–77 (1998) (fundraising events by non-profit organizations) sets out criteria under which outdoor fundraising activity by a non-profit organization can be conducted. Criteria applicable to Defendant's activity include “submit[ting] an application supplied by the village clerk[,]” providing documentation of not-for-profit status, and obtaining permission from “the administering agency” (e.g., school, village, county, federal, or state agency) if the activity is held on public property. Section 26–77(2), (4), (5). None of these ordinances refers to Section 58–84(b). We see nothing in the record that indicates that either the municipal court or the district court considered these other ordinances when convicting Defendant for violating Section 58–84(b).

{4} Defendant requests this Court to rule that Section 58–84(b) alone or in combination with Sections 26–62, 26–75, and 26–77 suffers from facial and as-applied constitutional deficiencies, naming the facial culprits overbreadth, prior restraint, and vagueness. It appears from the briefs on appeal that, in pursuit of the issue of the constitutional validity of Defendant's conviction under Section 58–84(b), the parties believe that all of these sections are to be read together as one regulatory scheme.

Applicable General Principles

{5} Our analysis of the facial invalidity of statutes and ordinances ¹ prohibiting content-neutral speech in public places essentially considers how substantial, broad, and chilling the prohibition is, sometimes involving concerns about unbridled government official discretion and prior restraint. In a facial challenge to an ordinance, we consider only the text of the ordinance itself, not its application; whereas, in an as-applied challenge, we consider the facts of the case to determine whether application of the ordinance even if facially valid deprived the challenger of a protected right. Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 174–75 (2d Cir.2006).

{6} “According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); State v. Ebert, 2011–NMCA–098, ¶ 6, 150 N.M. 576, 263 P.3d 918. The concept of overbreadth is applicable to invalidate ordinances that fail to serve “legitimate interests [through] narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms.” Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 637, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). The overbreadth doctrine is also applied to invalidate ordinances restricting speech that do not include reasonable restrictions based on time, place, and manner of communicating information. See, e.g., Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 59 n. 17, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (collecting cases that entertained facial overbreadth claims “where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct”); Grayned v. City of Rockford, 408 U.S. 104, 114–15, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (stating that an ordinance, even if clear and precise, “may nevertheless be overbroad if in its reach it prohibits constitutionally protected conduct” and “that reasonable, time, place[,] and manner regulations may be necessary to further significant governmental interests, and are permitted” (internal quotation marks omitted)).

{7} In some instances, the concept of void for vagueness is applicable to ordinances that restrict speech. See, e.g., Grayned, 408 U.S. at 109, 92 S.Ct. 2294 (“[W]here a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms.” (alterations omitted) (internal quotation marks and footnotes with citations omitted)); see also Coates v. City of Cincinnati, 402 U.S. 611, 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) (holding an ordinance prohibiting, among other things, “conduct ... annoying to persons passing by” to be “unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard,” to be vague “in the sense that no standard of conduct is specified at all[,]” and also to be “unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct”).

{8} In addition, the concept of prior restraint has also been applied in a First Amendment context. See Young, 427 U.S. at 59 n. 17, 96 S.Ct. 2440 (collecting cases that entertained facial overbreadth claims where expressive or communicative “conduct has required official approval under laws that delegated standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights”); cf. Cantwell v. Connecticut, 310 U.S. 296, 306, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (involving an invalid prior restraint on the free exercise of religion); see also Vill. of Schaumburg, 444 U.S. at 629, 100 S.Ct. 826 (noting that, following the Cantwell decision, the Court “understood Cantwell to have implied that soliciting funds involves interests protected by the First Amendment's guarantee of freedom of speech”).

{9} The ordinances in question are content neutral. See, e.g., Thomas v. Chicago Park Dist., 534 U.S. 316, 322, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002) (discussing the distinction between “subject-matter censorship [and] content-neutral time, place, and manner regulation of the use of a public forum”). Content-neutral regulation of protected speech may survive constitutional attack if the regulation is made subject to reasonable time, place, and manner restrictions. See Clark v. Cmty. for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (stating, in the context of content-neutral park service regulations relating to demonstrations, that “[e]xpression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions”); Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) (“[T]he peace, good order, and comfort of the community may imperatively require regulation of the time, place[,] and manner of distribution [of literature].”); Cox v. New Hampshire, 312 U.S. 569, 576, 61 S.Ct. 762, 85 L.Ed. 1049 (1941) (indicating that “[i]f a municipality has authority to control the use of its public streets for parades or processions, as it undoubtedly has, it cannot be denied authority to give consideration, without unfair discrimination, to time, place[,] and manner in relation to the other proper uses of the streets”); cf. City of Farmington v. Fawcett, 114 N.M. 537, 540, 843 P.2d 839, 842 (Ct.App.1992) (stating, in the context of free speech under the New Mexico Constitution on the issue of prior restraint, related to an ordinance criminalizing dissemination of obscene material, that “our [S]upreme [C]ourt has recognized that the state may constitutionally regulate the place and manner of such speech”). Still,...