State v. SteigerState v. Steiger
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- Before:
- Claborne
OPINION
CLABORNE, Presiding Judge.
This appeal involves the criminal prosecution and conviction of Sam Steiger, a member of the staff of the former Governor of the State of Arizona, Evan Mecham. Steiger was charged with a criminal violation of
(A) A person commits theft by extortion by knowingly ... seeking to obtain property or services by means of a threat to do in the future any one of the following:
(8) Perform or cause to be performed any other act which would not in itself materially benefit the defendant but which is calculated to harm another person with respect to his wealth, safety, business calling, financial condition, reputation or personal relationships.
This prosecution is based upon the following facts. Ron Johnson, a member of the Arizona Board of Pardons and Paroles, was appointed to the board by Governor Bruce Babbitt in 1984 and reappointed by Governor Evan Mecham in January, 1987. In August of 1987, Johnson was appointed
The executive director of the board was Ms. Patricia Costello (Costello). She had been recommended by Steiger to fill that position in 1987, the year she was hired. Ms. Costello’s employment was contingent upon the majority approval of the board. Her duties generally encompassed the supervision of the day-to-day administration of board activities.
The board was to meet on October 1, 1987. One of the agenda items was the continued employment of Costello as executive director. On the morning of the meeting, Steiger phoned Johnson. According to Johnson, Steiger said:
I want to make myself perfectly clear. If you vote to remove Patricia Costello as Executive Director to the Board at this afternoon’s meeting I will see to it that you no longer serve as Justice of the Peace, and I will further take every step necessary to have you removed from the Board. Did I make myself clear?
It is upon this alleged statement that the prosecution of Steiger was based.
Before the board meeting, Johnson reported his version of the conversation to the Arizona Attorney General, Robert Cor-bin. At the board meeting and before the vote on Costello, Steiger appeared and voiced his concern on the stability and performance of the board and its relationship with the Department of Corrections. The vote was 4 to 3 to ask Costello to resign. Johnson voted in favor of asking for her resignation. Ms. Costello tendered her resignation immediately after the vote.
On October 2, 1987, Johnson received a letter from Steiger. The contents of the letter were:
Dear Mr. Johnson:
The permission granted you to act as Justice of the Peace pro-tem is withdrawn effective immediately.
Failure to comply with this order will result in this office rescinding your administrative probation and demanding your resignation.
Sincerely,
/s/Sam Steiger Sam Steiger
Special Assistant
Johnson went back to the attorney general’s office and, at the direction of that office, called Steiger at his home and tape-recorded that conversation without the knowledge of Steiger.
On October 5, 1987, George Graham, an investigator for the attorney general’s office, at the direction of a deputy attorney general, went to Steiger’s office and tape-recorded an interview without Steiger’s knowledge. The state at oral argument conceded that one of its purposes in obtaining the recordings by Johnson and Graham was to gather impeaching evidence against Steiger.
Before trial, Steiger filed a motion to dismiss the information, a motion to suppress the Johnson and Graham recordings, and a motion in limine to limit the introduction of evidence at trial. Steiger also vigorously opposed the state’s motion in limine to exclude certain evidence, contending that the granting of such a motion severely limited the defendant’s right to test the credibility of the state’s evidence, and severely limited the defendant’s right to fully present his case.
At trial, the state offered both the Johnson and Graham recordings in evidence over Steiger’s objection. The court admitted both recordings. Steiger had moved to suppress these recordings, but that motion was denied.
The essence of Steiger’s defense was that any statement he made to Johnson was not for pecuniary or monetary gain but merely to advance the efficiency of the board and to repair the relationship between the board, the Department of Corrections and the public. The state’s position is that Steiger extorted a vote from
On April 7, 1988, the jury returned a verdict of guilty. The court denied Steiger’s motion for new trial, which urged that the court erred in various instructions given and refused; in the admission and exclusion of certain evidence; and in failing to dismiss the prosecution. The court placed Steiger on probation for four years and ordered him to pay a fine in the amount of $5,480.00 and perform 700 hours in a community work service program.
Steiger raises the following issues on appeal:
1. The court’s granting of the state’s motion in limine denied Steiger due process and a fair trial.
2. Steiger was denied due process when ■the court precluded him from calling witnesses, introducing exhibits and testifying fully in his defense.
3. Steiger was denied the right to cross-examine Johnson on matters elicited by the state on direct examination.
4. The court erred in denying Steiger’s motion to dismiss the information.
5. The court erred in its instructions to the jury.
6. The court erred in denying Steiger’s motion to suppress conversations recorded by the state.
Steiger argues that the information should have been dismissed on constitutional grounds. He alleges that the portion of the statute under which he was prosecuted was unconstitutionally vague and susceptible not only of uncertain construction but also arbitrary application. Steiger claims that the statute is not only unconstitutionally vague with respect to him, but also that it is so vague that it abridges constitutionally protected rights of speech and expression of others. We decide today that
As a result of questions by the court and counsel’s answers, we requested additional briefing on the issue of whether the failure to obtain a warrant from a neutral magistrate before surreptitiously tape-recording a conversation violates Arizona’s constitutional guarantee of privacy. Although we feel this issue is serious, we do not reach it, or the other issues raised on appeal, because we base our decision on the constitutionality of
Basic to our constitutional society is the concept that governmental power should be properly restrained so that individual freedom can be responsibly exercised. See Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). As a result, penal statutes must be precise enough to clearly define the limits of that power. Our supreme court has said:
That the terms of a penal statute ... must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
State v. McNair, 141 Ariz. 475, 483, 687 P.2d 1230, 1238 (1984) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926)).
Therefore, a penal statute is vague if it fails to give persons of average intelligence reasonable notice of what behavior is prohibited or is drafted in such a manner that it permits arbitrary and discriminatory enforcement.
Kolender v. Lawson,
461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983);
State v. Tocco,
156 Ariz. 116, 750 P.2d 874 (1988). Although due process requires notice which provides a fair and definite warning, it neither re
Turning now to Steiger’s vagueness attack on
Arizona has adopted broad definitions of property and services. Property is defined in
[Ajnything of value, tangible or intangible. Services is defined in
[Ljabor, professional services, transportation, cable television, telephone, gas or electricity service, accommodation in hotels, restaurants, leased premises or elsewhere, admission to exhibitions and use of vehicles or other movable property-
The vote of Johnson was no less “valuable” than the right to be free from outside pressure in making a business decision.
See United States v. Santoni,
585 F.2d 667 (4th Cir.1978),
cert. denied,
440 U.S. 910, 99 S.Ct. 1221, 59 L.Ed.2d 459 (1979).
See also United States v. Schwartz,
785 F.2d 673 (9th Cir.1986),
cert. denied,
479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986),
rev’d on other grounds,
857 F.2d 655 (9th Cir.1988). Because a vote is an intangible and something of value, it is included within the definition of property in
Steiger’s second claim is that
Returning to the basic premise that penal statutes defining a criminal offense must not only be definite, but also not encourage arbitrary and discriminatory enforcement, Justice O’Connor, writing for the majority in Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), said:
Although the doctrine [void for vagueness] focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the Vagueness doctrine’ is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement. (citation omitted.) Where 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.’
Id. at 358, 103 S.Ct. at 1858. And when a criminal statute’s literal scope is capable of reaching first amendment expression, the vagueness doctrine demands a greater degree of specificity. Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605, 612 (1974).
Steiger’s fear that criminal prosecutions may be brought against political opponents and antagonists is certainly realistic.
To demonstrate the danger of this statute, consider the following three situations:
1) An executive assistant to the governor says to a parole board member, “Either you vote favorably on the parole application of a friend of mine who will come before you next week, or, in my official capacity, I will take steps to jeopardize your continued tenure in your position.”
2) An executive assistant to the governor says to a parole board member, “Either you vote to approve the continued tenure of the current executive director, who has my confidence, or, in my official capacity, I will take steps to jeopardize your continued tenure in your position.”
3) An executive assistant to the governor says to a political appointee of the governor’s office, “Either you vote in accordance with the policy of the governor’s office on this issue or, in my official capacity, I will recommend that you be removed from your position.”
Each of the examples is prohibited by
The vagueness of
Certainly we do not condone in any way Steiger’s conduct. Whether Steiger’s objective was to preserve the effectiveness of the board or for far darker reasons is not the issue. The issue is much larger. There are times when an executive assistant to a governor, like Steiger, is required to issue strong directives in order to carry out the policy of the executive. To accomplish this end, the assistant may accompany the directive with a suggestion to certain employees that if the directive is not carried out the person may be demoted or even lose his job. As to other types of employees, persons like Steiger may not have the power to issue a directive, but must rely on their “persuasive ability”— “cajoling” as some say — to accomplish the desired result. Finally, in other situations a person in Steiger’s position would have no power to say or do anything. This statute is so vague that it gives no direction to a person like Steiger as to what is a legitimate directive and what is not. At best the statute’s “guidance” is ambiguous and, being so, subjects the individual to possible arbitrary prosecution. The legislature must narrowly draw a statute if it wishes to prohibit political intimidation.
The Requirement That a Person Must Have “Standing” to Challenge a Statute as Unconstitutional.
Our conclusions concerning the vagueness and the potential chilling impact of
Second, even if Steiger lacks this basis for standing, he achieves standing on the ground that the statute intrudes upon first amendment rights. 1
An exception to the traditional standing rule is recognized when a litigant challenges the constitutionality of a statute on the grounds that it intrudes upon activity protected by the first amendment. The litigant may challenge its constitutionality even though his conduct or expression is not constitutionally protected and clearly falls within the statute’s legitimate scope. Young v. American Mini Theatres, Inc., 427 U.S. 50, 60, 96 S.Ct. 2440, 2447, 49 L.Ed.2d 310, 319-20 (1976). This exception is based on the belief that “the very existence of some statutes may cause persons not before the court to refrain from engaging in constitutionally protected speech or expression.” Id. at 61, 96 S.Ct. at 2448. However, for the exception to apply, the deterrent effect on legitimate expression must be both “real and substantial,” and the statute must not be “readily subject to a narrowing construction.” Id. There must be a realistic danger that the statute will significantly jeopardize recognized first amendment protections of individuals not before the court. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772, 784 (1984).
Our concern, like Justice O’Connor’s, in
Kolender,
“is based upon the potential for arbitrarily suppressing First Amendment liberties____”
Kolender,
461 U.S. at 358, 103 S.Ct. at 1859.
Therefore, we ask if this deterrent effect on legitimate expression is both “real and substantial.”
In
Wurtz v. Risley,
719 F.2d 1438 (9th Cir.1983), the Ninth Circuit Court of Appeals was presented with a constitutional challenge to Montana’s intimidation statute on the grounds that it was substantially overbroad. The case is particularly instructive, not only because it helps us to determine the deterrent effect of
The court expressed the view that the state could unquestionably prohibit and punish the particular behavior of the defendant. Id. at 1442. But, when all of the characteristics of the statute were considered, the court felt it brought within its reach relatively harmless behavior. Id. As an example of harmless behavior which could be punished under the statute, the court referred to the civil rights activist who tells a restaurant owner, “if you don’t desegregate this restaurant I am going to organize a boycott.” Id. Punishing this type of behavior, said the Wurtz court, is to “chill the kind of ‘uninhibited, robust and wide open’ debate on public issues that lies at the core of the first amendment.” Id. (citing New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686, 701 (1964)).
There are numerous instances in which
Finally, before we declare
In State v. Felton, 339 So.2d 797 (La. 1976), the Louisiana Supreme Court applied such a construction to its extortion statute in order to save it from a constitutional challenge. The court limited the statute’s application by recognizing that the general scope of extortion “is intended to include what is commonly known as ‘blackmail’.” Id. at 800. The court cited Lafave & Scott, Criminal Law § 66 (1972) as follows:
[T]he purport of the statute is to prohibit the use of threats to cause the victim to part with his property or to do an act, or refrain from doing an act, to the advantage of the threatener, who could not without the threat otherwise lawfully secure such advantage willingly from the victim.
Felton, 339 So.2d at 800.
While it is proper for a court to construe a statute in such a manner, the court may not read into it something that the legisla
In Home Box Office, Inc. v. Wilkinson, 531 F.Supp. 987 (D.Utah 1982), the federal District Court for the District of Utah declined to place words of limitation on Utah’s pornography statute in order to save it from a constitutional attack. The court felt that to introduce words of limitation “would to some extent, substitute the judicial for the legislative department____ To limit this statute ... would be to make new law, not to enforce an old one. This is no part of our duty.” Id. at 998. See United States v. Reese, 2 Otto 214, 92 U.S. 214, 221, 23 L.Ed. 563 (1875) and L. Tribe, American Constitutional Law 717 at n. 4 (1978).
We agree with the approach taken in
Wilkinson.
Therefore, we leave to the legislature the task of narrowing
Notes
. The First Amendment to the Constitution of the United States provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Article 2, section 6 of the Constitution of the State of Arizona provides:
Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.
.
. We note that some disagreement exists among members of the Supreme Court as to whether a litigant who challenges a statute on vagueness grounds has standing to assert his claim based upon the rights of others. Compare Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) with Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) (White, J., concurring). It seems that when “standing” is analyzed concerning penal statutes which involve speech, the amorphous terms “vagueness” and “overbreadth” are logically related and sometimes functionally indistinguishable. Ko-lender v. Lawson, 461 U.S. at 358 n. 8, 103 S.Ct. at 1859 n. 8. A reading of the Supreme Court decisions reveals that when dealing with first amendment statutes, the terms are used interchangeably. Id.; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). The objectionable quality of vagueness and over-breadth does not depend upon absence of fair notice to a criminally accused or upon unchan-nelled delegation of legislative powers but upon the danger of tolerating, in the area of first amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. Button, 371 U.S. at 432-33, 83 S.Ct. at 845-46; Barenblatt v. U.S., 360 U.S. 109, 137-38, 79 S.Ct. 1081, 1098-99, 3 L.Ed.2d 1115, 1135 (1959) (Black, J. dissenting). Note, The First Amendment Overbreadth Doctrine, 83 Harv.L. Rev. 844, 871-72 (1970). So, whether a penal statute is challenged on the grounds that it is “vague” or “overbroad,” one may attack the statute for the “chilling” effect it will have on those who, although not the litigant, may be affected by its language when the challenge involves first amendment expression. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).