State ex rel. Baumert v. Municipal Court of Phoenix
Docket: No. 1 CA-CIV 4917
Court: Court of Appeals of Arizona; September 18, 1979; Arizona; State Appellate Court
Respondents Ray Charles Brice and Deborah Anne Davis were arrested in Phoenix for solicitation of indecent exposure under Phoenix City Code 23-66(b). They successfully moved to dismiss the charges, arguing that the city ordinance was preempted by state statutes on indecent exposure (A.R.S. 13-1402) and solicitation (A.R.S. 13-1002). The dismissal was affirmed by the Superior Court, leading the city to seek relief from this court.
The court determined that Phoenix City Code 23-66(a), which defines indecent exposure, conflicts with A.R.S. 13-1402. Key differences include the requirement in the state statute for the presence of another person who would be offended by the act, while the ordinance only mandates public exposure. The statute also requires recklessness, whereas the ordinance demands a willful act, allowing indecent exposure in private settings under certain conditions, which the ordinance does not accommodate.
The city argued that it could regulate behavior in this area as long as there was no conflict with state law. However, the court clarified that this principle applies only where there is no conflict, which is not the case here. Regarding preemption, the court noted that the state could prevent the city from legislating on indecent exposure, but chose not to address that issue due to the clear conflict found.
Finally, since the court invalidated subsection (a) of the ordinance, subsection (b), which prohibits solicitation of the conduct described in (a), is also rendered ineffective. The behavior the city sought to criminalize under code 23-66 is not specifically addressed by the state criminal code.
Section 23-66 of the Phoenix City Code aims to prohibit the solicitation of indecent acts when no third party is present. Under A.R.S. 13-1402, indecent exposure requires the presence of another person who could reasonably be offended, meaning an individual cannot claim to be offended while soliciting the act themselves. This creates a gap in state law that municipal ordinances can fill, allowing the City of Phoenix to criminalize solicitation not addressed by state law. However, while the respondents argue that the penalties prescribed by Phoenix City Code 23-66 conflict with state statutes—classifying violations as class one misdemeanors with penalties of up to 180 days in jail or a $1,000 fine, compared to class three misdemeanors under state law with maximum penalties of 30 days in jail or a $300 fine—the court ultimately finds that the ordinance is invalid for other reasons. The legislative authority of the City of Phoenix permits it to enact ordinances on all legitimate subjects, provided they do not conflict with state or federal laws. Consequently, the Superior Court's ruling that Phoenix City Code 23-66 is invalid is upheld, and the petitioner’s request for relief is denied. The ordinance itself defines indecent exposure and solicitation in public spaces but excludes live public performances.
A.R.S. 13-1002(A) establishes that a person, excluding peace officers acting within their official duties, commits solicitation if they intend to promote or facilitate a felony or misdemeanor by commanding, encouraging, requesting, or soliciting another to engage in conduct constituting such an offense or establishing complicity. Should the offense be completed, accountability follows as outlined in A.R.S. 13-303.
A.R.S. 9-240 grants the common council control over the finances and property of the corporation, along with the authority to create, amend, or repeal ordinances necessary for executing its powers. The council can enforce these ordinances and impose penalties for violations, which may include fines up to $300 or imprisonment for up to three months, at the discretion of the magistrate or court.
Under the Phoenix City Charter, Chapter IV, the council serves as the city's legislative body, empowered to enact ordinances or resolutions to execute its vested rights and obligations. Among its powers, the city can regulate and punish behaviors such as vagrancy, indecent conduct, and public drunkenness, aiming to maintain public order and morality.
