State v. Gates

¶1Donald Wesley Gates, appellant, was charged by information with violating A.R.S. § 13-981 by wearing a mask for the purpose of escaping detection or identification in the commission of a public offense, namely, indecent exposure. After trial by jury, he was convicted and sentenced to imprisonment in the state prison. A timely appeal was filed. The Court of Appeals affirmed his conviction. State v. Gates, 25 Ariz.App. 241, 542 P.2d 822 (1975); Supplemental Opinion, 26 Ariz.App. 75, 546 P.2d 52 (1976). We granted review.

¶2The underlying public offense which appellant was found to have committed while masked was indecent exposure. A.R.S. § 13-531.1 By virtue of the provisions of A.R.S. § 13-981 the wearing of a mask to escape detection or identification in the commission of a public offense constituted a felony.2 The statute A.R.S. § 13-981 has rarely been employed. It was first enacted as Section 1 of Chapter 78, Laws of 1923. The purpose of the section and its companion provisions was to frustrate the efforts of the Ku Klux Klan in Arizona. The statute appears to have been modeled after the federal statute 42 U.S.C. 19853 which had been originally enacted in April 1871 to enforce the provisions of the Fourteenth Amendment. See Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951).

¶3We are satisfied with the analysis made by the Court of Appeals of the meaning and intent of A.R.S. § 13-981, and we adopt their opinion on that point and the remaining issues discussed in their principal opinion. State v. Gates, 25 Ariz.App. 241, 542 P.2d 822 (1975).

¶4The issue which concerns us is the constitutionality of Arizona’s indecent exposure statute. A.R.S. § 13-531. A three-judge District Court for the District of Arizona declared the foregoing statute unconstitutional in September 1975. Attwood v. Purcell, 402 F.Supp. 231 (1975). In the federal action two topless dancers sought to enjoin enforcement of the indecent exposure statute against them by law enforcement officers of the City of Phoenix. The District Court held that dancing can be expression protected under the First and Fourteenth Amendments of the U.S. Constitution. Since the statute by application to the dancers results in regulation of expression it must meet the requisite specificity required of statutes that intend to regulate expression. The District Court found that the statute due to its vagueness and over-breadth was unconstitutional.

¶5The District Court decision was announced some two months before the Court of Appeals filed its original opinion on November 25, 1975. Appellant filed a motion for rehearing raising for the first time the issue of the constitutionality of the indecent exposure statute. On February 24, 1976 the Court of Appeals denied rehearing holding that the District Court decision in Attwoodwas not to be applied retroactively to appellant. State v. Gates, 26 Ariz.App. 75, 546 P.2d 52 (1976). The supplemental opinion of the Court of Appeals is vacated.

¶6*359The first issue facing this court is whether A.R.S. § 13-531 is unconstitutional. The federal District Court decision in Attwood v. Purcell, supra,strikes down the statute because it is vague and overbroad in its application to a constitutionally protected area—forms of expression under the First Amendment. The decision of the District Court is entitled to respectful consideration, but it is not binding on us. State v. Norflett, 67 N.J. 268, 337 A.2d 609 (1975); People v. Bradley, 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129 (1969). Even with respect to federal constitutional issues, the state and lower federal courts occupy comparable positions, a sort of parallelism with each governed by the same reviewing authority—the United States Supreme Court. State v. Coleman, 46 N.J. 16, 214 A.2d 393 (1965), cert. den., 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966).

¶7From a review of the authorities cited by the District Court we are satisfied that the statute could be applied to areas such as theater and dance that have been held to represent forms of expression protected by the First Amendment. The statute has not been so drawn or previously construed to eliminate such applications. See State v. Wayman, 104 Ariz. 125, 449 P.2d 296 (1969) and Yauch v. State, 109 Ariz. 576, 514 P.2d 709 (1973). Such application to protected areas does not meet the constitutional standards required when the state seeks to regulate such a protected area as free speech.

¶8The second issue to be considered is whether the ruling should be applied in this case. For the reasons expressed hereafter we will apply this construction and ruling prospectively.

¶9The indecent exposure statute has been a part of the statutes of this state since territorial days. It finds its o'rigins in the common law. See Yauch v. State, supra. The statute as applied to the appellant is clear and unambiguous; nor did he argue that he was not on notice as to the type of conduct proscribed. His acts were, without question, the type of conduct intended to be proscribed. It is only as the statute may be applied to others whose nudity is only an incidental part of a means of expression that the statute becomes defective. We recognize, however, that appellant has standing to challenge the statute. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

¶10A state is free under the Constitution to make a choice for itself between the principle of forward operation of a ruling and that of relation backward. Great Northern Ry. Co. v. Sunburst Oil & Ref., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). This principle was reaffirmed in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965):

“Thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective.” Id.at 85 S.Ct. 1737.

¶11There is no distinction to be drawn between civil and criminal matters in the effect to be given cases where previous judicial decisions are altered or overruled. Id. See also James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961). Nor is there any constitutional impediment to the application of a prospective application of a new decision in the constitutional area. Linkletter v. Walker, supra. A court is neither required nor prohibited from applying a decision retrospectively. Id.

¶12This court on a number of occasions has given prospective application to a change in the interpretation of the law. Southern Pacific Co. v. Cochise County, 92 Ariz. 395, 377 P.2d 770 (1963); Application of Billie, 103 Ariz. 16, 436 P.2d 130 (1968); State v. Griswold, 105 Ariz. 1, 457 P.2d 331 (1969). We have also spoken on the subject of retrospective application of decisions in the constitutional area. State v. Stenrud, 113 Ariz. 327, 553 P.2d 1201 (1976). After reviewing the authorities Justice Gordon, writing for the court, concluded:

“Retroactive application of a rule is appropriate if it affects the integrity of the fact-finding process and there is a clear danger of convicting the innocent.” State v. Stenrud, 113 Ariz. 328, 553 P.2d 1202.

¶13*360Generally the decision to refuse retroactive application has been applied to cases in which the judgment of conviction has become final. See Linkletter v. Walker, supra ; Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973); Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). As pointed out previously, this is not required, and a state court may make the choice for itself between prospective or retrospective application of its decisions. Great Northern Ry. Co. v. Sunburst Oil &; Ref., supra; Linkletter v. Walker, supra.In State v. Stenrud, supra,a case in which the judgment of conviction was on appeal, this court refused to apply retroactively to that case a recent decision concerning pleas of guilty. Thus, whether the application of the new rule be thought of as a prospective application or as a refusal of retroactive application the result is the same.

¶14Considering the criteria set forth in the federal decisions and our case State v. Stenrud, supra,it appears that this is a case for prospective application. The defect in the statute is not applicable to the appellant’s situation. He may be described as a hard-core violator. Nor can there be any purpose to applying the decision retroactively to set aside convictions in which there is no. issue of protected expression. At the time the appellant committed his acts there had been a long-established commonlaw history supporting the application of this type of statute against the acts of appellant. There is nothing in the record to suggest any reason why the statute should not be enforced against this appellant. His actions in no way offer support to the interest which may require protection under the First Amendment. We therefore affirm appellant’s conviction and sentence.

¶15We feel compelled to follow the decision of the District Court in Attwood, but we further hold that the decision to declare the statute A.R.S. § 13-531 unconstitutional is to be prospective in application.