SLC v. Larsen

----ooOoo----

Salt Lake City,
Plaintiff and Appellee,

v.

Kenneth R. Larsen,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000117-CA

F I L E D
September 28, 2000 2000 UT App 265 -----

Third District, Salt Lake Department
The Honorable Robert K. Hilder

Attorneys:
Kenneth R. Larsen, Salt Lake City, Appellant Pro Se
T. Langdon Fisher, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Thorne.

BENCH, Judge:

Larsen alleges that he had a right to a jury trial based on the plain language of the United States Constitution. However, the Supreme Court has interpreted the language in the Sixth Amendment to require a jury trial only in the prosecution of "serious offenses," determining that "'there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.'" Lewis v. United States, 518 U.S. 322, 325, 116 S. Ct. 2163, 2166 (1996) (citation omitted). The Court determined that a petty offense is one "carrying a maximum prison term of six months or less." Id. at 326, 116 S. Ct. 2166-67. Cruising is designated as an infraction. See Salt Lake City, Ut., Code § 12.12.010(B). A conviction for an infraction carries with it no possibility of imprisonment. See Utah Code Ann. § 76-3-205(1) (1999). The offense charged is therefore properly classified as a petty offense, not entitling Larsen to a jury trial under the Sixth Amendment.

Larsen also asserts that the Utah Constitution art. I, § 12, provides him with the right to a jury trial. "As a general rule, we will not engage in state constitutional analysis unless an argument for different analyses under the state and federal constitutions is briefed." State v. Lafferty, 749 P.2d 1239, 1247 n.5 (Utah 1988). Larsen does not argue for a different analysis of the state constitutional provision, therefore we do not address it further.

Larsen next argues that the cruising ordinance is unconstitutional, and he recites a variety of constitutional rights he believes the ordinance impinges upon. Preliminarily, Larsen contends that the ordinance is presumptively unconstitutional and the burden is on the prosecution to present constitutional authority to support it. However, it is well established that anyone challenging the constitutionality of an enactment bears the burden of overcoming our presumption of its validity. See Society of Separationists v. Whitehead, 870 P.2d 916, 920 (Utah 1993).

Larsen alleges that the ordinance is an unconstitutional restriction on free speech. While there may be an element of expression in the conduct associated with "cruising," the First Amendment protections apply only when there is "[a]n intent to convey a particularized message . . . and the likelihood [is] great that the message would be understood by those who viewed it." Spence v. Washington, 418 U.S. 405, 410-11, 94 S. Ct. 2727, 2730 (1974). The expression of youthful rebellion that Larsen asserts cruising conveys is not sufficiently particularized, nor is it likely to be so understood by others, for it to be classified as the type of speech protected by the First Amendment.

Even if the expressions were protected by the First Amendment, the City maintains the right to impose "'reasonable restrictions on the time, place, or manner of protected speech'" as long as the restrictions are "'narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'" Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2753 (1989) (citation omitted). The findings of the city council contained in the ordinance reflect a significant governmental interest in curing some of the problems the community has experienced as a result of cruising. See Salt Lake City, Ut., Code § 12.12.090(A). In addition, the ordinance only addresses cruising during a limited time and in a limited location, allowing ample driving alternatives and providing no limitation on foot traffic. See Salt Lake City, Ut., Code § 12.12.090(B).

Larsen next argues that the ordinance denies equal protection to the subculture of cruisers. For an ordinance to violate equal protection it must target a suspect or quasi-suspect class of people. No such class is singled out and targeted by this ordinance. All people regardless of race, gender, age, or ethnicity are subject to the consequences of the ordinance. In addition, we are satisfied that the factors enumerated by the city council, which form the basis for the ordinance, are rationally based and relate to the City's legitimate governmental interest in providing for the safety and welfare of all citizens.

Finally, Larsen raises the following issues: freedom of religion, unenumerated rights, right to travel, and the pursuit of happiness. In reviewing these remaining issues, we find them to be without merit and do not address them. See State v. Carter, 776 P.2d 886, 888 (Utah 1989).

Accordingly, we affirm.
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
William A. Thorne, Jr., Judge