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Martin v. Reinstein5/13/1999
ners' standing to raise overbreadth and vagueness claims. Generally, a party may not challenge a statute on overbreadth or vagueness grounds if that party's conduct is clearly prohibited by the statute. See State v. Musser, 292 Ariz. Adv. Rep. 11, 5 (Mar. 23, 1999) (citing Members of City Council v. Taxpayers for Vincent, 446 U.S. 789, 800 (1984); Broadrick v. Oklahoma, 413 U.S. 600, 610 (1973)); see also Maricopa County Juv. Action No. JT9065297, 181 Ariz. at 73, 887 P.2d at 603 (citing Parker v. Levy, 417 U.S. 733, 756 (1974)). Petitioners, however, argue that they may make a "facial" attack on the Act because the Act's "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick, 413 U.S. at 612.
Because standing is not a constitutional jurisdictional requirement in Arizona, see State v. B-Bar Enterprises, Inc., 133 Ariz. 99, 100 n.2, 649 P.2d 978, 980 n.2 (1982), we find that the Petitioners have standing to challenge the Act on overbreadth and vagueness grounds. An exception to the standing requirement arises when the statute's potential deterrent effect on First Amendment activities is "both real and substantial." Juvenile Action No. JT9065297, 181 Ariz. at 73, 887 P.2d at 603 (citing Young v. American Mini Theaters, Inc., 427 U.S. 50, 60 (1976)). Petitioners have alleged that the Act severely chills the protected speech of persons subject to the Act. See infra 95-103. Further, standing is a matter of discretion, and although it is rare, we have waived the standing requirement "in cases involving issues of great public importance that are likely to recur." Sears v. Hull, 273 Ariz. Adv. Rep. 36, 25 (July 16, 1998). We thus address the merits of Petitioners' claims.
b. Vagueness
To satisfy due process requirements, statutes must be sufficiently clear and concrete that they provide "person of ordinary intelligence a reasonable opportunity to know what is prohibited" and contain explicit standards of application so as to prevent arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972); Hernandez v. Frohmiller, 68 Ariz. 242, 251-52, 204 P.2d 854, 860 (1949). Petitioners claim that the Act is so vague that it fails to give them adequate notice of the conduct that may subject them to the terms of the Act.
The Act, however, does not proscribe "conduct." Instead, it permits the confinement, for treatment and security purposes, of those who are "sexually violent persons" who have previously committed at least one "sexually violent offense." Both phrases are specifically defined in the Act. See A.R.S. § 36-3701(6)-(7). A judicial factfinder must find, beyond a reasonable doubt, that the person suffers from a "mental disorder that makes the person likely to engage in acts of sexual violence." Id. § 36-3701(7). "Mental disorder" means "a paraphilia, personality disorder or conduct disorder or any combination of paraphilia, personality disorder and conduct disorder that predisposes a person to commit sexual acts to such a degree as to render the person a danger to the health and safety of others." Id. § 36-3701(5). We find these terms adequately defined and capable of comprehension and enforcement.
Petitioners specifically attack the vagueness of the limitation that the alleged SVP's mental disorder "makes the person likely to engage in acts of sexual violence." Id. § 36-3701(7)(b) (emphasis added). Although Petitioners recognize that "likely" is synonymous with "probable," see Webster's New World Dictionary 819 (2d ed. 1979); Johnson, 181 Ariz. at 350, 890 P.2d at 645, they nonetheless argue that the term is too broadly defined to satisfy
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