Opinion
1 CA-CV 99-0484
Filed September 5, 2000
Appeal from the Superior Court of Maricopa County Cause No. CV 99-03391. The Honorable Joseph D. Howe, Judge.
AFFIRMED IN PART, REVERSED IN PART, REMANDEDJanet A. Napolitano, Attorney General, Phoenix, By William C. Wilder, Assistant Attorney General Attorneys for Defendants-Appellants, Cross Appellees.
Eleanor L. Miller, Phoenix, and John R. Cogorno, Westminster, CA, Attorneys for Plaintiffs-Appellees, Cross Appellants.
Stephanie Nichols-Young Phoenix Attorney for Intervenors-Appellants.
OPINION
In November 1998, Arizona voters passed an initiative banning cockfighting, which later was codified as Arizona Revised Statutes Annotated ("A. R. S.") sections 13-2910.03 and 13-2910.04 (collectively, the "Cockfighting Statutes"). This appeal arises from a challenge to those statutes.
The Cockfighting Statutes read, in their entirety:
§ 13-2910.03. Cockfighting; classification
A. A person commits cockfighting by knowingly:
1. Owning, possessing, keeping or training any cock with the intent that such cock engage in an exhibition of fighting with another cock.
2. For amusement or gain, causing any cock to fight with another cock or causing any cocks to injure each other.
3. Permitting any act in violation of paragraph 1 or 2 to be done on any premises under his charge or control.
B. Cockfighting is a class 5 felony.
C. For purposes of this section and § 13-2910.04, cock means any male chicken, including game fowl except wildlife as defined in A. R. S. § 17-101.
§ 13-2910.04. Presence at cockfight; classification
Any person who is knowingly present at any place or building where preparations are being made for an exhibition of the fighting of cocks, or is present at such exhibition, is guilty of a class 1 misdemeanor.
Unless otherwise noted, references to section 13-2910.03(A)(1) and (2) include that part of section 13-2910.03(A)(3) that relates to the referenced subsection.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs ("Harris") brought suit against the State and several of its officers, seeking, among other things, a declaratory judgment that the Cockfighting Statutes are unconstitutional and a preliminary injunction enjoining their enforcement. The State filed its opposition, and Citizens Against Cockfighting ("CAC"), the public interest group that supported the initiative enacting the Cockfighting Statutes, moved to intervene pursuant to Arizona Rule of Civil Procedure 24.
Plaintiffs are a collection of cockfighting enthusiasts and businesses. None have been charged with violating any provision of the Cockfighting Statutes.
Before hearing evidence and oral argument regarding Harris' motion for preliminary injunction, the trial court ruled that CAC could not intervene as a matter of right and that, because its participation would not be helpful, it would not be allowed to intervene permissively. Following evidence and oral argument, the trial court ruled that section 13-2910.03(A)(2) and the portion of section 13-2910.03(A)(3) relating to section 13-2910.03(A)(2) were constitutional, but that section 13-2910.03(A)(1), section 13-2910.04 and the portion of section 13-2910.02(A)(3) relating to section 13-2910.03(A)(1) were not. The trial court subsequently enjoined the enforcement of those parts of the Cockfighting Statutes that it found to be unconstitutional, and refused to enjoin the enforcement of the rest.
All parties timely appealed. CAC appealed the trial court's denial of its motion to intervene. The State appealed that part of the trial court's order preliminarily enjoining the enforcement of section 13-2910.03(A)(1) and section 13-2910.04. Harris cross-appealed that part of the trial court's order refusing to preliminarily enjoin the enforcement of section 13-2910.03(A)(2). We have jurisdiction pursuant to A. R. S. section 12-2101(F)(2). For the following reasons, we affirm in part, reverse in part and remand.
Harris disputed CAC's appeal. The State took no position regarding it.
ISSUES
We are asked to decide the following issues:
1. Did the trial court err in denying CAC's motion to intervene?
2. Did the trial court abuse its discretion in preliminarily enjoining the enforcement of section 13-2910.03(A)(1) and section 13-2910.04?
3. Did the trial court abuse its discretion in refusing to preliminarily enjoin section 13-2910.03(A)(2)?
DISCUSSION I. THE TRIAL COURT DID NOT ERR IN DENYING CAC'S MOTION TO INTERVENE
CAC asserts that the trial court erred in refusing to grant its motion to intervene. We, however, conclude otherwise.
CAC first argues that the trial court erred in refusing to grant its motion to intervene as a matter of right pursuant to Arizona Rule of Civil Procedure 24(a). We review de novo the trial court's denial of intervention as a matter of right. See Purvis v. Hartford Acc. Indem. Co., 179 Ariz. 254, 257, 877 P.2d 827, 830 (App. 1994).
Rule 24(a) requires that a trial court allow a requested intervention as a matter of right when "the applicant claims an interest [in] the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." (Emphasis added.) CAC argues that, as the organization that supported the initiative to enact the Cockfighting Statutes, it is a party entitled to intervene pursuant to Rule 24(a). We disagree.
Because no Arizona authority addresses this issue, CAC notes that our rules of civil procedure were adopted from the federal rules and that we give great weight to interpretations afforded similar federal rules. See Macpherson v. Taglione, 158 Ariz. 309, 311, 762 P.2d 596, 598 (App. 1988). CAC then suggests that, because the Ninth Circuit recognizes the right of citizen initiative proponents to intervene under the analogous Rule 24 of the Federal Rules of Civil Procedure, we should do likewise. See Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir. 1983); Washington State Bldg. Constr. Trades Council v. Spellman, 684 F.2d 627, 630 (9th Cir. 1982); Idaho v. Freeman, 625 F.2d 886, 887 (9th Cir. 1980).
But even were we to apply the Ninth Circuit rule, CAC still would not qualify for intervention as a matter of right because the trial court found that the State could adequately defend the constitutionality of the Cockfighting Statutes. See Ariz. R. Civ. P. 24(a)(4); Cedar-Sinai Med. Center v. Shalala, 125 F.3d 765, 768 (9th Cir. 1997) (affirming trial court's denial of relator's motion to intervene because its interests adequately represented by defendant). We will not reverse that finding unless the trial court abused its discretion. See Purvis, 179 Ariz. at 257, 877 P.2d at 830 (although appellate court reviews denial of intervention as a matter of right de novo, factual findings reviewed for abuse of discretion).
CAC then argues that the trial court abused its discretion because, given the opportunity, CAC would have "provide[d] information regarding the drafting of the initiative, the purpose behind it, the public policy reasons for [it, the] history of similar provisions in this country . . . [and] the cruel and inhumane practices that are inherently part of cockfighting." But the State provided all such information that was actually relevant to this matter. The trial court, therefore, did not abuse its discretion in finding that the State could adequately represent CAC's interests. Consequently, it did not err in refusing to grant CAC intervention as a matter of right.
In the alternative, CAC argues that the trial court abused its discretion by denying it permissive intervention. The standard of review for the denial of permissive intervention is abuse of discretion. See Bechtel v. Rose, 150 Ariz. 68, 74, 722 P.2d 236, 242 (1986).
CAC maintains that the trial court failed to consider the factors set forth in Bechtel before denying its motion for intervention. The relevant factors noted in Bechtel include, but are not limited to, the nature and extent of the intervenor's interest; the intervenor's standing to raise legal issues; the legal position the intervenor seeks to assert; whether intervention would unduly prolong litigation; and whether the intervenor would "significantly contribute" to the proceedings. See id. at 72, 722 P.2d at 240. Significantly, Bechtel only requires that the trial court consider these relevant factors; it does not require written findings. See id.
Further, unlike the trial court in Bechtel, the trial court here not only considered the appropriate factors, it also made a record of its findings. The trial court found that CAC's interest in this case was political and therefore no different from the State's interest. More importantly, the trial court concluded that CAC's participation would not be helpful and indicated that it would unduly prolong the proceedings. Although not included in its minute entry, these findings satisfy Bechtel, and CAC has not argued that the trial court abused its discretion in making them. We therefore affirm the trial court's denial of CAC's motion to intervene.
The findings were made orally, but on the record, at the time that CAC moved to intervene.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN ENJOINING THE ENFORCEMENT OF SECTION 13-2910.03(A)(1) AND SECTION 13-2910.04 A. Standard of Review
We review the grant or denial of an injunction for an abuse of discretion. See Financial Assoc. v. Hub Props., Inc., 143 Ariz. 543, 545, 694 P.2d 831, 833 (App. 1984). However, a trial court abuses its discretion if it commits an error of law or clearly errs in finding the facts or applying them to the law. See Grant v. Arizona Pub. Serv. Co., 133 Ariz. 434, 455-56, 652 P.2d 507, 528-29 (1982). "The constitutionality of a statute is a matter of law that we review de novo." City of Tucson v. Rineer, 193 Ariz. 160, 164, 6 12, 971 P.2d 207, 211 (App. 1998). We begin with the strong presumption that the statute is constitutional, and the party challenging the statute has the burden of overcoming that presumption. See State v. Tocco, 156 Ariz. 116, 119, 750 P.2d 874, 877 (1988); see also Ruiz v. Hull, 191 Ariz. 441, 448, 957 P.2d 984, 991 (1998) (applying presumption of constitutionality to voter initiative).
B. Section 13-2910.03(A)(1)
The State appeals the trial court's order preliminarily enjoining the enforcement of section 13-2910.03(A)(1), which the trial court found to be unconstitutionally vague. A statute is vague if it (1) fails to give a person of ordinary intelligence fair notice that particular conduct is forbidden, or (2) fails to provide ascertainable standards by which it may be enforced, thereby impermissibly delegating basic policymaking decisions to police officers, judges or juries and allowing arbitrary or discriminatory enforcement. See Kolender v. Lawson, 461 U.S. 352, 357 (1983); Papachristou v. City of Jacksonville, 405 U.S. 156, 165 (1972); see also Matter of Pima County Juv. Appeal No. 74802-2, 164 Ariz. 25, 28, 790 P.2d 723, 726 (1990) ("The earmark of an unconstitutionally vague statute is that it defines the proscribed conduct in terms so indefinite that people of common intelligence must necessarily guess at its meaning.").
CAC filed an amicus curie brief in which it largely joined the State's arguments on both the appeal and cross appeal. For convenience, we refer to all arguments in favor of the constitutionality of the Cockfighting Statutes as arguments by the State.
The trial court did not find that a person of ordinary intelligence would not know what conduct is forbidden. Instead, it found that, because the evidence that implies intent to engage in cockfighting is consistent with both innocence and guilt, "the enforcement thereof may be entirely subjective." We, however, conclude that the State can and must produce independent evidence of a defendant's intent in order to prove a violation of section 13-2910.03(A)(1), and that its enforcement would not be "subjective." We therefore hold that section 13-2910.03(A)(1) is constitutional.
Two Pennsylvania cases provide helpful examples of appropriate prosecutions. In Commonwealth v. Gonzalez, a police officer found twenty-three roosters in separate cages in the defendant's basement. See 588 A.2d 528, 530, 533 (Pa.Super.Ct. 1991). The officer noted that the roosters were groomed for cockfighting, and also found special hormones, a trophy inscribed with the words "Number One Bird" and a newspaper clipping reporting that possession of birds for fighting was a felony. See id. at 530. In addition, the birds were wounded and the defendant had several accouterments of cockfighting in his basement. See id. at 533. Based on this evidence, the defendant was convicted of violating a Pennsylvania statute similar to Arizona's.
In Commonwealth v. Balog, the defendant's children had been injured by an aggressive rooster, and an investigating police officer found "a number of cages and birds on leashes." 672 A.2d 319, 323 (Pa.Super.Ct. 1996). The officer subsequently searched the defendant's property, finding aggressive birds "altered" for cockfighting, a diary and magazines with information about fighting birds and two sets of spurs. See id. In addition, a neighbor testified that the defendant had previously engaged in cockfighting and had raised his birds as "fighting roosters." Id. The Balog defendant subsequently was convicted of violating the Pennsylvania statute.
Both defendants appealed, arguing that the Pennsylvania law was unconstitutional for vagueness. See id. at 322; Gonzalez, 588 A.2d at 533. The Pennsylvania Superior Court refused to consider defendant's vagueness argument, finding that the evidence clearly fell within the scope of the proscribed acts. See Balog, 672 A.2d at 322; Gonzalez, 588 A.2d at 533-34. See also Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n. 7 (1982) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.") (quoting Parker v. Levy, 417 U.S. 733, 756 (1974)).
The Superior Court is Pennsylvania's intermediate appellate court.
As these cases illustrate, evidence such as expressions of intent, gamecocks "altered" for fighting, gamecocks with wounds, special vitamins, spurs, clippers, pits on the owner's premises, separate housing of the gamecocks, the aggressiveness of the birds and actual illegal participation in cockfighting may all help to distinguish between an innocent owner of gamecocks and one who intends to enter a gamecock into an illegal fight. To the extent that evidence may conflict, our jury system protects a defendant's rights. See Aikens v. Wisconsin, 195 U.S. 194, 206 (1904) ("[I] t must be assumed that the constitutional tribunal does its duty and finds facts only because they are proved."); Bryan v. Pinney, 3 Ariz. 34, 47, 21 P. 332, 338 (1889) ("One of the glories of the jury system is that there is wisdom in the council of many."). We therefore conclude that section 13-2910.03(A)(1) does not risk unreasonably subjective enforcement, and thus is not unconstitutionally vague.
Of course, this list is exemplary, not exhaustive.
Harris, however, goes on to argue that the federal Animal Welfare Act ("AWA"), 7 U.S.C. § 2156 (1988), has preempted section 13-2910.03(A)(1). Specifically, Harris notes that the AWA prohibits the interstate transportation of gamecocks for cockfighting, but "only if the fight is to take place in a State where it would be in violation of the laws thereof." 7 U.S.C. § 2156 (d). Consequently, Harris urges that, because section 13-2910.03(A)(1) criminalizes the transport of gamecocks to a state where cockfighting would be legal, it conflicts with the AWA and is therefore preempted by it.
When considering this argument, other states have reached differing conclusions. Compare People v. Mink, 237 A.2d 664, 666-67 (N. Y. App. 1997) (AWA does not prohibit state that bans cockfighting from prosecuting person for transporting gamecocks to state that does not); West Valley City v. Streeter, 849 P.2d 613, 617-18 (Utah App. 1993) (same) with Gonzalez, 588 A.2d at 532 (Pennsylvania statute does not prohibit interstate transport of gamecocks to state where cockfighting legal). But we need not decide today whether the AWA preempts section 13-2910.03(A)(1) because Harris has not shown any set of existing facts that adequately raises the issue, and we will not consider every hypothetical question that a party can project. See Klein v. Ronstadt, 149 Ariz. 123, 124, 716 P.2d 1060, 1061 (App. 1986) ("A declaratory judgment must be based on a real, not theoretical controversy; a plaintiff must have a sufficient, concrete interest at stake so that a court may answer the questions presented in relation to those interests."). Here, no party is protesting an arrest or conviction for the interstate transport of gamecocks to a state where cockfighting is legal. We, therefore, leave that issue to another day.
In summary, section 13-2910.03(A)(1) does not risk unreasonably subjective enforcement, and thus is not unconstitutionally vague. Further, its preemption by the AWA is not properly before us. We, therefore, conclude that the trial court abused its discretion in enjoining the enforcement of section 13-2910.03(A)(1).
C. Section 13-2910.04
The State also appeals the trial court's order preliminarily enjoining the enforcement of section 13-2910.04, which the court also found to be unconstitutionally vague. Even though section 13-2910.04 requires proof of a defendant's knowing presence at a cockfight, the trial court found, and Harris urges on appeal, that "in this context, the unintelligible qualities of the statutory definition of `knowing' become most evident" because the mere presence of a person at the scene of a crime cannot itself be a crime. We, however, conclude otherwise because "mere presence" has not been criminalized by section 13-2910.04 — only knowing presence has.
Arizona's statutory definition of "knowingly" is quite clear. See A. R. S. § 13-105(9)(b) (Supp. 1999) ("`Knowingly' means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission."). Not surprisingly, Harris has been unable to cite any case in any jurisdiction invalidating a criminal statute because the statutory definition of "knowingly" was vague — whether with or without a similar statutory definition. In Arizona, courts have repeatedly refused to declare as unconstitutional for vagueness those statutes whose mens rea requirement includes the word "knowingly." See, e. g., State v. Strong, 178 Ariz. 507, 508, 875 P.2d 166, 167 (App. 1993) (offering to sell narcotics); Tocco, 156 Ariz. at 114, 750 P.2d at 872 (leading organized crime); State v. Carruth, 132 Ariz. 368, 370, 645 P.2d 1282, 1284 (App. 1982) (breathing, inhaling or drinking a vapor-releasing substance). We similarly decline to do so here.
Like many other states, Arizona's statutory definition of "knowingly" is similar to that of the Model Penal Code. Compare Model Penal Code, §§ 2.02(2)(b), (9) (1985) with A. R. S. § 13-105(9)(b). For examples of other states with definitions of "knowing" or "knowingly" similar to that of the Model Penal Code, see Ala. Code Ann. § 13A-2-2(2) (1995); Colo. Rev. Stat. Ann. § 18-1-501(6) (1989); Conn. Gen. Stat. § 53(a)-3(12) (1999); Del. Code Ann., tit. 11, § 231(b)(1), (2) (1995); Haw. Rev. Stat. § 702-206(2) (1993); 720 Ill. Comp. Stat. Ann. 5/ 4-5 (1993); Ind. Code Ann. § 35-41-2-2(b) (1997); Ky. Rev. Stat. Ann. § 501. 020(2) (1999); Me. Rev. Stat. Ann., tit. 17-A, § 35(2) (1989); Mo. Stat. Ann. § 562.016(3) (1995); N. H. Stat. Ann. § 626: 2(II)(b) (1996); N. J. Stat. Ann. § 2C: 2-2(b) (2) (1995); N. Y. Penal Law Ann. § 15.05(2) (1998); Ohio Rev. Code Ann. § 2901.22(B) (1995); Or. Rev. Stat. Ann. § 161.085(8) (1991); 18 Pa. Cons. Stat. Ann. § 302(b)(2) (1998); S. D. Codified Laws § 22-1-2(1)(c) (1998); Tex. Penal Code Ann. § 6.03(b) (1994); and Utah Code Ann. § 76-2-103(2) (1999).
Notwithstanding, Harris cites a number of cases from other jurisdictions where courts have invalidated anti-animal fighting statutes for being unconstitutionally vague. But those cases are unpersuasive because the statutes in question criminalized "mere presence," without a "knowing" requirement. See State v. Young, 695 S.W.2d 882, 885-86 (Mo. 1985) (distinguishing Missouri anti-cockfighting statute from constitutional statutes because it contained no provision that one's presence be "knowing"); State v. Abellano, 441 P.2d 333, 334 n. 1 (Haw. 1968) (Honolulu ordinance making it unlawful for "any person . . . to be present at any cockfighting exhibition" unconstitutionally vague) (emphasis added); State v. Wear, 472 N.E.2d 778, 782-83 (Ohio App. 1984) (Ohio anti-animal fighting statute unconstitutionally vague and overbroad because it criminalized mere presence at site of animal fight whether or not defendant knows and whenever fight occurs); see also State v. Bryson, 605 N.E.2d 1284, 1289 (Ohio App. 1992) (portion of Ohio anti-animal fighting statute criminalizing presence at arena whether or not fight occurring at time unconstitutionally vague and overbroad; portion criminalizing knowing presence at fight constitutional).
Section 13-2910.04 does not create criminal liability for anyone who unwittingly stumbles upon a cockfight. Rather, for criminal liability to attach, it requires that the person be knowingly present at a cockfight. This "knowing" requirement separates section 13-2910.04 from the invalidated laws. Section 13-2910.04, therefore, is not unconstitutionally vague.
Because of our resolution of the constitutional issues, we need not address the State's argument that the trial court erred in granting partial preliminary injunction without proper findings of fact.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO ENJOIN SECTION 13-2910.03(A)(2)
Harris argues that the trial court should have preliminarily enjoined the enforcement of section 13-2910.03(A)(2). He asserts that section 13-2910.03(A)(2) is unconstitutional because (1) pursuant to article XXII, section 1 of the Arizona Constitution ("article XXII, section 1"), it is an invalid use of the State's police power; (2) it is vague; and (3) it is overbroad. We, however, conclude that article XXII, section 1 is irrelevant to this matter and that section 13-2910.03(A)(2) is neither vague nor overbroad.
To begin, article XXII, section 1 simply does not apply here because it was intended only to assist in the transition from territorial government to statehood. See Steinfeld v. Nielsen, 15 Ariz. 424, 139 P. 879 (1913), on motion for rehearing, 15 Ariz. 458, 468, 139 P. 893, 898 (1914). It was adopted merely to ensure that the transition would be orderly. See The Records of the Arizona Constitutional Convention of 1910, at 1052 (John S. Goff, ed.). Further, the proposition itself, entitled "A Proposition Relative to Validating Existing Territorial Laws," presupposed that future state law would not remain static. See id. ("It is hereby proposed: All laws of the Territory of Arizona now in force, not repugnant to this Constitution, shall remain in force as laws of the State of Arizona until they expire by their own limitations or are altered or repealed by law.") (emphasis added). One commentator even has regarded article XXII, section 1 as unworthy of discussion because it has been rendered obsolete by the passage of time. See John D. Leshy, The Arizona State Constitution — A Reference Guide 340 (1993) ("While a number of these first twelve sections [of article XXII] have been the subject of judicial attention . . ., they are practically obsolete and no commentary is provided on them.").
Article XXII, section 1 states, in pertinent part: "No rights, actions, suits, proceedings, contracts, claims, or demands, existing at the time of the admission of this State into the Union, shall be affected by a change in the form of government, from Territorial to State, but all shall continue as if no change had taken place."
Moreover, assuming arguendo the continued viability of article XXII, section 1, Harris fails to explain how the ability to participate in a cockfight is a "right" within the section's meaning. This provision has never been interpreted to refer to any "rights" other than rights of action or contractual rights. See, e. g., Fredericks v. Hammons, 33 Ariz. 310, 321, 264 P. 687, 691 (1928) (article XXII, section 1 not applicable because contract not entered into until after statehood); Herndon v. Hammons, 33 Ariz. 88, 92, 262 P. 620, 621 (1927) (article XXII, section 1 preserves all existing contracts); Steinfeld, 15 Ariz. at 468, 139 P. at 898 (holding article XXII, section 1 ensures that the change in governmental form would not affect existing rights; it does not guarantee that civil procedure would remain unchanged).
Harris, however, implies that, because cockfighting was not illegal when Arizona changed from territory to state, it is a "right." But that confuses a fundamental right, which the government generally cannot curtail, with the "right" to do that which is not illegal (i. e., a privilege), which, if the statute is neither arbitrary nor irrational and is reasonably related to a legitimate state purpose, the government may regulate. See, e. g., In re Brandon H., 195 Ariz. 387, 388-89, 6 9, 988 P.2d 619, 620-21 (App. 1999) ("right" to drive not fundamental). Furthermore, Harris' interpretation would unduly restrict the powers of the legislature, which was not the intended result. We, therefore, conclude that section 13-2910.03(A)(2) does not violate article XXII, section 1.
Next, we hold that section 13-2910.03(A)(2) is not vague. A statute is vague if (1) it fails to give a person of ordinary intelligence fair notice that particular conduct is forbidden or (2) it fails to provide ascertainable standards by which it may be enforced, thereby impermissibly delegating basic policymaking decisions to police officers, judges or juries and allowing arbitrary or discriminatory enforcement. See Juv. Appeal No. 74802-2, 164 Ariz. at 28, 790 P.2d at 726.
Citing neither authority nor the record, Harris asserts that the phrases "amusement or gain" and "causing any cocks to injure each other" are vague. We, however, fail to see vagueness in either phrase. A person of common intelligence would understand those phrases to mean exactly what they say that cockfighting is illegal in Arizona, whether it be for profit or pleasure, whenever the perpetrator knowingly causes gamecocks to fight or injure each other. See United States Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 578-79 (1973) ("[T] here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.").
Harris next asserts that section 13-2910.03(A)(2) is overbroad. A statute is overbroad if it targets constitutionally unprotected conduct but sweeps constitutionally protected speech or conduct into its net. See Grayned v. City of Rockford, 408 U.S. 104, 114-15 (1972); State v. Muser, 191 Ariz. 228, 230, 954 P.2d 1053, 1055 (App. 1997). His argument, however, rests largely on his faulty assumption that there is a constitutionally protected right to participate in cockfighting. As discussed earlier, there is not.
Nevertheless, Harris also argues that section 13-2910.03(A)(2) is overbroad because it unconstitutionally prohibits the right of game fowl owners to peaceably assemble. But section 13-2910.03(A)(2) does not restrict assembly; it merely proscribes, similar to a myriad of other statutes, certain activities in which citizens may engage while assembled. See, e. g., A. R. S. §§ 13-1104-05 (1999) (prohibiting the knowing commission of second and first degree murder); — 1203 (prohibiting the knowing commission of assault); — 1304 (1989) (prohibiting the knowing commission of kidnapping); — 1406 (1989) (prohibiting the knowing commission of sexual assault). Game fowl owners are still free to peaceably assemble; they simply can no longer participate in cockfighting while so doing.
Although Harris did not present his right to assembly argument until his reply brief, in our discretion we will consider it. See, e. g., Airport Props. v. Maricopa County, 195 Ariz. 89, 97-98, 6 31, 985 P.2d 574, 582-83 (App. 1999) (to preserve judicial resources, Arizona appellate courts have discretion to consider constitutional arguments even when parties normally lack standing).
Finally, Harris reasons that section 13-2910.03(A)(2) is overbroad because it amounts to a taking of property without notice, hearing, or compensation. However, he cites no authority for the proposition that the overbreadth doctrine applies to such takings, and we are aware of none. In any event, were such a taking to occur, it is inverse condemnation that would provide a remedy for it. See City of Phoenix v. Superior Court, 158 Ariz. 214, 218, 762 P.2d 128, 132 (App. 1988). Section 13-2910.03(A)(2), therefore, is not unconstitutionally overbroad.
We note that these arguments are relevant to a denial of due process argument, rather than overbreadth.
In summary, section 13-2910.03(A)(2) does not violate article XXII, section 1, and is neither vague nor overbroad. The trial court, therefore, did not abuse its discretion in refusing to preliminarily enjoin it.
CONCLUSION
For the foregoing reasons, we reverse that part of the trial court's order preliminarily enjoining the enforcement of section 13-2910.03(A)(1) and section 13-2910.04, and affirm the balance of the trial court's order. This case is remanded for further proceedings consistent with this opinion.
_________________________________________ SHELDON H. WEISBERG, Presiding Judge.
CONCURRING: _________________________________________ CECIL B. PATTERSON, JR., Judge. _________________________________________ JON W. THOMPSON, Judge.