SUPREME COURT OF ARIZONA
En Banc
TAMMIE C. BENNETT and JAMES A. ) Arizona Supreme Court
BENNETT, wife and husband, dba ) No. CV-04-0215-PR
OLD TOWN SQUARE ARTS AND CRAFTS )
FESTIVAL, ) Court of Appeals
) Division One
Plaintiffs-Appellants, ) No. 1 CA-CV 03-0233
)
v. ) Yavapai County
) Superior Court
GHERAL BROWNLOW and CAROL ) No. CV 01-0567
BROWNLOW, husband and wife; )
YAVAPAI COUNTY, a political )
subdivision of the State of ) O P I N I O N
Arizona, )
)
Defendants-Appellees. )
)
__________________________________)
Appeal from the Superior Court in Yavapai County
No. CV-01-0567
The Honorable Kenneth L. Fields, Judge
REMANDED WITH INSTRUCTIONS
Court of Appeals, Division One
208 Ariz. 79, 90 P.3d 1245 (2004)
VACATED
JONES & MILLER Prescott
By Kenton D. Jones
Attorneys for Tammie and James Bennett
JONES, SKELTON & HOCHULI, P.L.C. Phoenix
By Georgia A. Staton
Randall H. Warner
Attorneys for Yavapai County
________________________________________________________________
J O N E S, Justice (retired)
Tammie C. Bennett filed the instant action against Yavapai County
challenging a county ordinance that regulates the commercial use of the
Yavapai County Courthouse Plaza. We granted review of the question whether
the ordinance violates Bennett’s right of free speech under the First
Amendment to the Constitution of the United States. We conclude that
Bennett lacks standing to maintain the action.
FACTS AND PROCEDURAL HISTORY
The Yavapai County Courthouse is surrounded by an expansive grassy area and
numerous large shade trees, commonly referred to as the Courthouse Plaza
(the “Plaza”). Several times a year, the County Board of Supervisors (the
“Board”) allows sponsors of commercial events to use the Plaza. In 1991,
Tammie Bennett began organizing an annual event on the Plaza known as the
Old Town Square Arts & Crafts Festival (the “Festival”).
The Board requires that any party seeking to hold a commercial event on the
Plaza first obtain a permit. For several consecutive years, the Board
issued Bennett the annual permit for the Festival. As the organizer, each
year, Bennett involved the Williamson Valley Volunteer Fire Department (the
“VFD”) by exchanging use of its non-profit tax identification number for a
portion of the Festival proceeds. The VFD’s name did not appear on the
annual permits.
In 2000, the Board amended the governing ordinance and designated the
Prescott Downtown Partnership (the “Partnership”) to oversee use of the
Plaza. The amended ordinance required that all major events on the Plaza
be sponsored by an organization recognized as non-profit by the Internal
Revenue Service, Yavapai County, Ariz., Ordinance 2000-4 § 104(B), and
allowed the non-profit sponsor to “designate an Event Coordinator [to]
serve as the Sponsor[’]s representative with respect to the management of
the Event.” Id. § 104(A).[1] The amendments became effective November 17,
2000.
At some stage of the planning for the 2001 Festival, Bennett and the VFD
had a parting of the ways. Thus, in an attempt to comply with the
ordinance as amended, Bennett made an arrangement with the non-profit
Fraternal Order of Police (the “FOP”) and submitted an application for the
Festival listing the FOP as the sponsor and Bennett as the “sponsor agent”
and “owner-event coordinator.” After submitting the application, Bennett
was told to submit a revised application because additional information was
needed and inclusion of her name on the application as “owner-event
coordinator” was inappropriate. Bennett v. Brownlow, 208 Ariz. 79, 82, ¶
7, 90 P.3d 1245, 1248 (App. 2004). Bennett then submitted the revised
application listing the FOP as the “Sponsor” and herself as the “Sponsor
Agent.” The VFD, with which Bennett was no longer associated, also applied
for a Plaza permit to sponsor an arts and crafts show on the same dates.
The Partnership awarded the permit to the VFD. In a letter addressed to
both the VFD and the FOP, the Partnership reminded both entities that the
VFD had sponsored the Festival for more than a decade and “in order to
revoke the [VFD’s] sponsorship of the event, a serious and overriding
reason must be found.” The letter stated that a change in management
personnel was not a sufficient reason to justify revoking the VFD’s long
standing sponsorship.
Bennett appealed to the County Parks Director, who affirmed the
Partnership’s decision. The FOP was not a party to the appeal and did not
participate in the proceeding. Thereafter, Bennett appealed the Director’s
decision to the Board, which declined to hold a hearing to review the
administrative decision.
Bennett then filed this action in the superior court naming the County as
defendant and alleging various federal and state claims. In a separate
lawsuit, Bennett sued County Supervisor Gheral Brownlow, alleging that he
caused the VFD to disengage with her. The cases were consolidated. The
FOP did not join in either suit. One of Bennett’s claims against the
County was that “the presentation and sale of arts and crafts at the
Festival is expressive conduct entitled to constitutional protection” and
that “the County violated the First Amendment . . . by limiting event
sponsors to non-profit organizations.” Id. at 83, ¶ 12, 90 P.3d at 1249.
The County moved for summary judgment on all claims and Bennett filed a
cross-motion. The trial court granted the County’s motion, denied
Bennett’s motion, and entered judgment allowing Bennett to take an
immediate appeal pursuant to Rule 54(b) of the Arizona Rules of Civil
Procedure. Bennett appealed the decision to the court of appeals.
The court of appeals addressed Bennett’s First Amendment arguments on the
merits, largely because the County had not pressed a standing argument. The
court nevertheless noted Bennett’s possible lack of standing to maintain
her constitutional claim:
[Bennett may not have] standing to challenge the non-profit sponsor
requirement of the Ordinance. The only application actually
considered and denied by the County was that of the FOP, which is a
non-profit organization.
Id. at 83, ¶ 12 n.2, 90 P.3d at 1249 n.2.
On the merits, the court of appeals determined that the Plaza was a public
forum and that the ordinance was a time, place and manner restriction,
which must be “narrowly tailored to serve a significant government interest
and leave open ample alternatives for communication.” Id. at 85, ¶ 20, 90
P.3d at 1251. The court held that the ordinance at issue was “neither
significantly related to [the County’s] purpose nor narrowly tailored to
achieve it.” Id. at 86, ¶ 25, 90 P.3d at 1252. The court reversed the
lower court decision and remanded the case for further proceedings to allow
Bennett to show whether she was damaged by reason of the
unconstitutionality of the ordinance.
The County petitioned for review, which we granted. We have jurisdiction
pursuant to Article 6, Section 5(3) of the Arizona Constitution, Rule 23 of
the Arizona Rules of Civil Appellate Procedure, and Arizona Revised
Statutes (“A.R.S.”) § 12-120.24 (2003).
ANALYSIS
As in the court of appeals, the County does not in this court challenge
Bennett’s standing to bring this action. The case, as noted by the court
of appeals, presents a substantial First Amendment issue. We believe,
however, that the threshold issue that must first be resolved is whether
Bennett has standing to sue.
Unlike the Constitution of the United States, the Arizona Constitution does
not require a party to assert an actual “case or controversy” in order to
establish standing. E.g., Fernandez v. Takata Seat Belts, Inc., ___ Ariz.
___, ___, ¶ 6, 108 P.3d 917, 919 (2005); Bennett v. Napolitano
(“Napolitano”), 206 Ariz. 520, 525, ¶ 19, 81 P.3d 311, 316 (2003). As a
matter of sound judicial policy, however, this court has long required that
persons seeking redress in Arizona courts must first establish standing to
sue. Napolitano, 206 Ariz. at 524, ¶ 16, 81 P.3d at 315. The Arizona
requirement that plaintiffs establish standing is prudential and
constitutes an exercise of judicial restraint. Id.
We are thus reluctant to waive the standing requirement and have done so
only on rare occasions. See Rios v. Symington, 172 Ariz. 3, 5 n.2, 833
P.2d 20, 22 n.2 (1992) (court expressly declined to address potential
standing issues not raised by the parties, but reminded the parties that
future attempts to invoke the court’s jurisdiction on similar grounds will
be viewed with great circumspection). In Napolitano, where we declined
review on the merits for lack of standing, we explained once again that
although we reviewed Rios on the merits, Rios should not be taken as an
indication that we will engage in such review in the future without the
claimant first establishing standing to sue. 206 Ariz. at 527, 529, ¶¶ 32,
41, 81 P.3d at 318, 320.
Waiver of the standing requirement is the exception, not the rule. Our
reluctance to waive the requirement stems in large part from the narrowness
of the exception, as demonstrated by our decision in Sears v. Hull, 192
Ariz. 65, 961 P.2d 1013 (1998) (plaintiffs’ remote and generalized claim
showed no distinct and palpable injury to plaintiffs themselves and did not
allege harm of the nature required to achieve standing). Moreover, the
standing doctrine is consistent with notions of judicial restraint and
ensures that courts refrain from issuing advisory opinions, that cases be
ripe for decision and not moot, and that issues be fully developed between
true adversaries. See Armory Park Neighborhood Ass’n v. Episcopal Cmty.
Servs. in Ariz., 148 Ariz. 1, 6, 712 P.2d 914, 919 (1985).
To establish standing, we require that petitioners show a particularized
injury to themselves. Fernandez, ___ Ariz. at ___, ¶ 6, 108 P.3d at 919;
Napolitano, 206 Ariz. at 524, ¶ 16, 81 P.3d at 315. Bennett’s claim in
this case is that she was injured by the requirement in the ordinance that
events on the Plaza be sponsored by a non-profit organization. But the
sponsor of the Festival listed on Bennett’s application, the FOP, is a non-
profit organization. The only applications that were filed came from the
VFD and the FOP, both non-profit organizations. Bennett could not have
suffered personal harm from the non-profit requirement as the FOP
application was not rejected on that ground. As referenced in the
Partnership’s rejection letter to the FOP, the FOP’s application was
rejected not because it lacked a non-profit sponsor, but because
sponsorship by the VFD, a long-time backer of the Festival, was preferable.
Both the initial permit application filed by Bennett as well as her revised
application listed the FOP as the non-profit sponsor. Bennett was not a
sponsor. The Partnership simply made its choice between two non-profit
organizations. That choice cannot be said to have caused First Amendment
damage to Bennett. On these facts, Bennett cannot establish standing to
assert her claim.
CONCLUSION
For the reasons stated, we hold that Bennett lacks requisite standing to
maintain this action. We vacate the court of appeals opinion and remand
the case to the superior court with instructions to dismiss the complaint.
_______________________________________
Charles E. Jones, Justice (retired)
CONCURRING:
_______________________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
-----------------------
[1] The ordinance was again amended in 2002 and appears as Yavapai
County, Ariz., Ordinance 2002-2 § 104, available at
http://www.co.yavapai.az.us/ordinances/OrdinancesIndex.asp (follow
“Courthouse Plaza Park Rules 2002-2” hyperlink). This latter amendment has
no bearing on the resolution of this matter.