State v. B Bar Enterprises, Inc.

FELDMAN, Justice,

specially concurring.

I concur in the result, and I concur with the portions of the decision holding that: (1) When applied to acts of prostitution conducted in public, the Act (A.R.S. §§ 12-801 to -810) is not an unconstitutional interference in the prostitutes’ and their clients’ alleged first amendment rights to sexual privacy. (2) The Act does not violate appellants’ fourteenth amendment rights to due process of law. As applied to appellants, it is neither overbroad nor vague. (3) The State may constitutionally “abate” the operation of a business which encompasses the performance of sexual acts for the payment of money.

I agree with the reasoning by which the majority decides these issues. I write because I do not agree that we should decide the other issues raised. That decision should abide a case which presents a specific application of the statute.

Appellants here fall within the “hard core” of the statute. State v. Duran, 118 Ariz. 239, 575 P.2d 1265 (1978). They operate a business which they call a “massage parlor” but where — as part of that business — sexual acts are performed for payment of money. In determining the fundamental, substantive constitutionality of the Act, the majority correctly considers appellants’ first amendment arguments even though those arguments raise constitutional rights (the sexual privacy of prostitutes and customers) broader than those which appellants could themselves assert. However, in narrowly defining two of the three proscribed acts1 (prostitution and lewdness), the majority upholds the basic constitutionality of the statutes, leaving possible unconstitutional “imprecision in the application of the statute at its periphery” to be raised and decided when, as, and if such a case arises.

I would apply the same rule to the two procedural due process problems. The court holds that closure of a business by issuance óf a temporary restraining order under A.R.S. § 12-804, without notice to the owner or operator of that business, is not “inconsistent with due process.” The majority also holds that A.R.S. § 12-805(B), admitting evidence of “general reputation,” is not unconstitutional. This case is before us on a bare record of a complaint and a motion to dismiss. No temporary restraining order was sought or granted, no hearing was held at which evidence of “general reputation” was offered or admitted. On this record, I am unprepared to decide the constitutionality of either of these procedural sections of the Act; the validity of these procedures is dubious at best, and should not be decided until a case involving their application is before us.

Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.... A closely related principle is that constitutional rights are personal and may not be asserted vicariously.... These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.. .. Constitutional judgments ... are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court ....

*105Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915, 37 L.Ed.2d, 830, 839 (1973) (citations omitted).

This rule is applicable to the procedural due process arguments raised by appellants. Since no temporary restraining order was issued against appellants and since no hearing was held at which evidence of general reputation was admitted for any reason, it is neither necessary nor possible for this court to place its seal of approval upon these procedures. They may be constitutional in some applications, but until we have the question before us, we cannot decide it. Questions of procedural due process turn on the facts before the court. Where there are no facts, there is no opportunity to decide the question.

. A.R.S. § 12-802 states that buildings used for performance of “acts of ... assignation” are nuisances, subject to abatement. Such acts are not defined, although there is authority that a “house of assignation” is a house resorted to for prostitution, State v. Hesselmeyer, 343 Mo. 797, 123 S.W.2d 90, 95 (1938), though Webster defines it as an appointment for a meeting, especially for illicit sexual relations.