Ward v. Utah

• Citation: 398 F.3d 1239
• Decision Date: 23 February 2005
• Docket Number: No. 03-4245.,03-4245.
• Parties: Eric WARD, Plaintiff-Appellant, v. State of UTAH, a governmental entity, Defendant, Olene S. Walker, Governor of the State of Utah; and Mark Shurtleff, Attorney General of the State of Utah, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

398 F.3d 1239

Eric WARD, Plaintiff-Appellant, v. State of UTAH, a governmental entity, Defendant Olene S. Walker, Governor of the State of Utah; and Mark Shurtleff, Attorney General of the State of Utah, Defendants-Appellees.

No. 03-4245.

United States Court of Appeals, Tenth Circuit.

February 23, 2005.

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Brian M. Barnard (James L. Harris, Jr., with him on the briefs), Utah Legal Clinic, Salt Lake City, UT, appearing for Plaintiff-Appellant.

Jerrold S. Jensen, Assistant Attorney General (Mark L. Shurtleff, Attorney General, with him on the brief), Utah Attorney General's Office, Salt Lake City, UT, appearing for Defendants-Appellees.

Before TACHA, Chief Circuit Judge, BALDOCK, and HENRY, Circuit Judges.

TACHA, Chief Circuit Judge.

Plaintiff-Appellant Eric Ward burned a mink stole as part of an animal-rights protest. The State charged Mr. Ward with disorderly conduct, and because he allegedly acted "with the intent to intimidate or terrorize another person," Utah Code Ann. § 76-3-203.3, the charge was enhanced from a misdemeanor to a felony. The State, however, quickly dropped the enhancement charge as mistakenly filed and eventually dropped the disorderly conduct charge as well. Mr. Ward filed suit seeking a declaration that section 76-3-203.3 violated his rights protected by the First and Fourteenth Amendments of the United States Constitution and Article I, §§ 7 and 15 of the Utah Constitution. The District Court rejected these claims and granted summary judgment for the Defendants. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

Mr. Ward regularly participates in public demonstrations to express his views concerning the ethical treatment of animals. On November 14, 1999, Mr. Ward engaged in such a demonstration in Magna, Utah. Although the record reveals very little about this incident, Mr. Ward admits that the protest included a candlelight vigil and the burning of a mink stole. Mr. Ward maintains that the demonstration was lawful. Nevertheless, on December 4, 2000, the State charged him with misdemeanor disorderly conduct, see Utah Code Ann. § 76-9-102, and with an enhancement provision increasing the charge to a felony. This enhancement provision authorized increased punishment for persons committing certain enumerated offenses, including disorderly conduct, with the intent to "intimidate or terrorize." Utah Code Ann. § 76-3-203.3.

The record is unclear whether the State brought the disorderly conduct charge because Mr. Ward burned the mink stole or for other reasons — nor does it explain why the State waited over a year to file these charges. The record also fails to include any evidence on which the State could have based its application of the enhancement provision. In any event, the State dropped the enhancement charge on December 27, 2000, and eventually dropped the disorderly conduct charge as well. Nevertheless, a felony arrest remains on Mr. Ward's record.

Mr. Ward plans to continue participating in animal-rights protests and is fearful that the State will again charge him with the section 76-3-203.3 penalty enhancement. In order to avoid future prosecution, Mr. Ward brought a 42 U.S.C. § 1983 action in the District Court for a declaration that section 76-3-203.3 is unconstitutional, see 28 U.S.C. § 2201(a), an injunction prohibiting the State from enforcing it against him, see 28 U.S.C. § 2202, and attorney's fees and costs, see 42 U.S.C. § 1988(b). The suit named as defendants the State of Utah and its Governor and Attorney General, in both their individual and official capacities. The State was never served and therefore is not a party to this suit. Defendants-Appellees Governor Olene Walker and Attorney General Mark Shurtleff filed a motion to dismiss the claims against them in their individual capacities but conceded that the suit, insofar as it sought only prospective injunctive relief, could be properly maintained against them in their official capacities.

In addition to their motion to dismiss, the Defendants also filed a motion for judgment on the pleadings. The Defendants argued that section 76-3-203.3 requires the commission of a predicate misdemeanor offense, and because Mr. Ward only intends to engage in lawful protests, the enhancement statute will never apply to him. Before the District Court had ruled on the Defendants' motions, Mr. Ward moved for summary judgment, arguing that there were no disputed issues of fact and that he was entitled to judgment as a matter of law. The District Court concluded that Mr. Ward lacked standing and dismissed the suit.¹

Mr. Ward appealed the District Court's decision. This Court held that Mr. Ward had standing to contest the constitutionality of this statute and thus reversed and remanded. Ward v. Utah, 321 F.3d 1263 (10th Cir.2003) ("Ward I"). On remand, Mr. Ward moved to renew his motion for summary judgment, relying exclusively upon his arguments made prior to our reversal in Ward I. Similarly, the Defendants merely renewed their motion in opposition to summary judgment.

Although Mr. Ward's complaint alleged constitutional violations under both the United States Constitution and the Utah Constitution, he raises only his federal arguments on appeal. Mr. Ward's state constitutional arguments, therefore, are waived. Powers v. Harris, 379 F.3d 1208, 1214 n. 11 (10th Cir.2004).

Mr. Ward presented three arguments below, namely, that section 76-3-203.3 was unconstitutionally broad; unconstitutionally vague; and an improper time, place, or manner restriction. The District Court rejected each of these arguments. The court held that section 76-3-203.3 was not facially overbroad because it requires the commission of a misdemeanor as a predicate offense; it was not unconstitutionally vague because it has a scienter requirement; and it is a legitimate time, place, manner restriction because it is a content-neutral regulation preventing the destruction of property and true threats. The court then granted summary judgment on all claims for the Defendants sua sponte. Mr. Ward timely appealed.

II. STANDARD OF REVIEW

We review the grant of summary judgment de novo, applying the same standard as the district court. First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1120 (10th Cir.2002). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the factual record and all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment, which given the District Court's sua sponte ruling is Mr. Ward. See First Unitarian Church, 308 F.3d at 1120. Finally, "[b]ecause First Amendment interests are involved, we have an obligation to conduct an independent review of the record and to examine constitutional facts and conclusions of law de novo." Id.

Although "the practice of granting summary judgment sua sponte is not favored," Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1132 (10th Cir.2003), a sua sponte order of summary judgment may be appropriate if "the losing party was on notice that she had to come forward with all of her evidence." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If a losing party was not prejudiced by the lack of notice, we will not reverse simply because the grant of summary judgment came sua sponte. See Scull v. New Mexico, 236 F.3d 588, 600 — 01 (10th Cir.2000). Here, Mr. Ward does not argue that he suffered prejudice by lacking notice of the need to come forward with evidence. Indeed, he has never contended that he would bring forward additional material facts if given the opportunity.

III. AS-APPLIED CHALLENGE

Mr. Ward labels his First Amendment argument, below and on appeal, as both an as-applied and a facial challenge. Because Mr. Ward's substantive arguments have only presented facial challenges, however, one has difficulty deciphering what constitutes Mr. Ward's as-applied challenge. In his reply brief, Mr. Ward attempted to clarify his as-applied arguments, but even the reply brief fails to make an as-applied challenge.

Mr. Ward first argues that Utah's statute is "overbroad on its face and as applied to [him]." But an overbreadth challenge is a facial challenge. See Faustin v. City and County of Denver, Colo., 268 F.3d 942, 948 (10th Cir.2001); Stuart Buck and Mark L. Rienzi, Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitutional Challenges to Uninterpreted State Statutes, 2002 Utah L.Rev. 381, 383, 385 n. 11. We therefore consider Mr. Ward's overbreadth arguments as solely a facial challenge.

Mr. Ward also claims that admissions made by the appellees in the answer brief confirm that he has an as-applied challenge. He cites the following passages from the appellees' brief: "application of the statute in the underlying case ... was clearly a mistake on behalf of the prosecutor"; "the charge against Plaintiff in the underlying case ... was clearly inappropriately applied"; "the statute was inappropriately applied to Ward."

These statements merely concede that the state erred in charging Mr. Ward under section 76-3-203.3. Although misapplication of a criminal statute could potentially lead to a malicious prosecution charge, treating the events of Mr. Ward's prior arrest as an as-applied challenge to the constitutionality of the statute would result in deciding the validity of a statute with respect to a factual situation that the state concedes the statute does not cover. Furthermore, all of the "admissions" are found in the Defendants' brief on appeal and therefore, to the extent that Mr. Ward relies on these statements to support...