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Honorable Kenneth L. Fields
Filed: 8/25/2009    Case Number: CR2008-009242
Plaintiff	Prosecution
State of Arizona	Special Prosecutor Sheila Polk Melvin Bowers
v.
Defendant	Defense
Donald Stapley Jr.,	Tom Henze Paul Charlton

MINUTE ENTRY

The Court has under advisement two motions to dismiss by Defendant Stapley as well as an objection by the State to the use of certain exhibits. The disputed exhibits either were attached to the Reply to the Motion to Dismiss for Vagueness or were offered during oral argument on the Motion to Dismiss. The Court ruled on admissibility of the exhibits during the oral argument.

The Court denies the Motion to Dismiss for vagueness and grants in part the Motion to Dismiss for failure to follow the requirements of A.R.S. § 38-545 and to promulgate standards for financial disclosure. After consideration of the oral arguments and pleadings of counsel, the Court finds and rules as follows.

The Court sustained the State’s objections to the summary exhibit in Defendant’s reply brief and the exhibits submitted at oral argument because the motions were set for oral argument on legal issues and not for an evidentiary hearing. Absent agreement by the opposing party, the Court will not consider these exhibits.

The Defendant is charged in several counts with failure to disclose specific businesses, trusts and real estate interests and/or real property improvements under A.R.S. § 38-542 (A) (4) & (5).

On his motion to dismiss the indictment for vagueness, the Defendant seeks to dismiss the charges against him because the statute under which these charges are brought, A.R.S. § 38-542, is unconstitutionally vague. It is the Defendant’s position that the disclosure requirements of A.R.S. § 38-542 (A) (4) & (5) are difficult to use and the forms prescribed by the Arizona Secretary of State for use by public officials are vague and duplicative. Mr. Stapley also argues that the following terms or phrases are vague: “dealing in real property interests and improvements,” “date,” “value,” “specific location,” “approximate size,” “business” and “trust.” He further argues that the Court cannot save the statute as constitutional here by reference to the ordinary meanings of these words.

The State’s counter-argument is that the statute is not impermissibly vague because in those instances where a phrase or word is not defined by the Legislature, a common meaning, technical, statutory or judicial definition is available. The State also notes that the Defendant is not charged with failing to disclose “values” or “locations” and cannot complain of the vagueness of these terms in his constitutional challenge.

The standard for finding a statute unconstitutional for vagueness has been clearly articulated by both the Federal Courts and Arizona appellate courts.

In addition to defining a core of proscribed behavior to give people constructive notice of the law, a criminal statute must provide standards to prevent arbitrary enforcement. City of Chicago v. Morales, 527 U.S. 41, 52, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999). Without such standards, a statute would be impermissibly vague even if it did not reach a substantial amount of constitutionally protected conduct, because it would subject people to the risk of arbitrary deprivation of their liberty. Forbes v. Napolitano, 236 F.3d 1009, 1011-1012 (9th Cir. Ariz. 2000). See also, State v. Akins, 206 Ariz. 113, 116 (Ariz. Ct. App. 2003).

When Defendant challenges A.R.S. § 38-352 as unconstitutionally vague, this Court must start with a presumption that the statute is constitutional or construe it, if possible, in such a manner to render it constitutional. State v. McDermott, 208 Ariz. 332, 335-6 (Ariz. Ct. App. 2004). Mr. Stapley therefore must convince this Court that this statute is so impermissibly vague that it must be held to be unconstitutional.

The Legislature does not have to define with precision the phrases and terms of A.R.S. § 38-542 in order for the statute to survive constitutional challenges. The statute is not unconstitutional simply because a defendant cannot readily determine if his conduct is illegal. Golob v. Ariz. Med. Bd., 217 Ariz. 505, (Ariz. Ct. App. 2008).

This Court agrees with the State that the phrases, terms and words complained of by Defendant can be defined with sufficient precision utilizing common meanings, Arizona or Federal statutes and judicial decisions so as to avoid the first prong of a vagueness challenge: that is, it is not so vague that it leaves an ordinary person uncertain as to what conduct it requires or prohibits. A.R.S. § 38-542 does give a person in Defendant’s position a reasonable opportunity to know and determine what is required by way of disclosure of property and business interests.

The Court is not convinced that A.R.S. § 38-542 allows a prosecutor or police authority such unfettered discretion to allow or encourage arbitrary enforcement.The statutory scheme involved here does describe with sufficient particularity what a person must do to comply with the disclosure requirements. The complexity of the disclosure requirements do not render the statute unconstitutionally vague as applied here.

Defendant’s motion to dismiss because A.R.S. § 38-542 is unconstitutional is denied.

Defendant moves to dismiss all but two (2) of the counts in the indictment for failure to follow the requirements of A.R.S. § 38-545 to properly establish standards of financial disclosure for County Officials in Maricopa County. The Defendant’s argument is that he is charged with violating a Maricopa County Rule or Resolution that does not exist and that the attempt by the Maricopa County Board of Supervisor (Board) to comply with A.R.S. § 38-545 was deficient.

Mr. Stapley is charged with failing to disclose property or business interest as required under a “Maricopa County Rule or Resolution adopted January 20, 1994.” A.R.S. § 38-545 requires Maricopa County to adopt standards of financial disclosure consistent with the provisions of A.R.S. §§ 38-541—545. There is no “rule or resolution adopted January 20, 1994” which established or adopted standards of financial disclosure. There was a motion to “update the Financial Disclosure form for Elected Officials…” to bring it into compliance with “A.R.S. § 38-541 et al.,” which was approved by the Board. There is no subsequent “ordinance, rule, resolution, or regulation” adopting standards of financial disclosure as required by A.R.S. § 38-545.

The Board in 1984 also failed to comply with its statutory mandate and adopt standards for financial disclosure. By motion, it indicated that it intended to adopt standards consistent with the requirement of A.R.S. § 38-541 et seq. These standards were never adopted.

The State argues that the Board’s action on January 20, 1994 was merely a “tune-up” of its earlier Resolution adopted in 1974 adopting standards of financial disclosure. This was done in order to bring it into compliance with revisions to A.R.S. § 38-541 et seq. This does not save the State’s indictment as to these counts however. The charges are that he failed to comply with standards adopted by “Rule or Resolution of January 20, 1994” by not disclosing certain property or business interest. The attempt by the Board in 1984 and 1994 was to incorporate disclosure requirements materially different from those adopted in 1974.

This Court agrees with the Defendant. The County Board of Supervisors has only that legislative power given to it by the Arizona Legislature and must act in strict compliance with the delegated authority given it. Hancock v. McCarroll, 188 Ariz. 492, 498 (Ariz. Ct. App. 1996). Here the Maricopa County Board did not act pursuant to the mandate of A.R.S. § 38-545 and therefore the Defendant may not be held criminally liable for violations of financial disclosure standards never properly adopted.

IT IS ORDERED dismissing Counts 7, 8, 12, 13, 14, 18, 19, 20, 24, 25, 29, 30, 37, 38, 42, 43, 44, 48, 49, 50, 54, 55, 56, 57, 58, 65, 66, 67, 68, 75, 76, 77, 85, 86, 87, 88, 95, 96, 97, 98, 100, 101, 102, 111, 112, 113, 114, 115, 116, 117, and 118.

This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp

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