TOBE v. CITY OF SANTA ANA

40 Cal.Rptr.2d 402
1995 WL 236606 (Cal.), 63 USLW 2676
(Cite as: 9 Cal.4th 1069, 892 P.2d 1145, 40 Cal.Rptr.2d 402)

Archie TOBE et al.,

Plaintiffs and Appellants,

v.

CITY OF SANTA ANA et al.,
Defendants and Respondents.

Dawn ZUCKERNICK et al.,

Petitioners,

v.

The MUNICIPAL COURT FOR the CENTRAL JUDICIAL DISTRICT OF ORANGE COUNTY,
Respondent;

The People, Real Party in Interest.
No. S038530.
Supreme Court of California.
April 24, 1995.

Homeless residents filed petition for writ of mandate challenging constitutionality of city ordinance which banned camping and storage of personal property in public areas. The Superior Court, Orange County, No. 696000, James L. Smith, J., entered judgment, from which residents appealed. In separate action, defendants charged with violating ordinance filed petition for writ of mandate or prohibition to challenge orders of the Municipal Court, Central Judicial District, Nos. 93CM02392, 93CM02393, 93CM02361, 93CM02519, 93CM02525, 93CM02358, 93CM02513, 93CM02354, 93CM02516, 93CM02530, 93CM02386, 93CM02520, Gregory Lewis, J., relating to charges. The Court of Appeal, 32 Cal.App.4th 941, 27 Cal.Rptr.2d 386, invalidated ordinance on constitutional grounds, and city and People petitioned for review. The Supreme Court, Baxter, J., held that: (1) only facial, not "as applied" challenge to ordinance was perfected in trial court; (2) ordinance did not impermissibly restrict right to travel; (3) ordinance did not unconstitutionally permit punishment for status; and (4) ordinance was not unconstitutionally vague or overbroad.

Reversed.

Kennard and Werdegar, JJ., filed concurring opinions. Mosk, J., filed dissenting opinion.

[1] CONSTITUTIONAL LAW 9247
Facial challenge to constitutional validity of statute or ordinance considers only text of measure itself, not its application to particular circumstances of individual.

[2] CONSTITUTIONAL LAW 9247
"As applied" challenge to constitutionality of statute may seek relief from specific application of facially valid statute or ordinance to individual or class of individuals who are under allegedly impermissible present restraint or disability as result of manner or circumstances in which statute or ordinance has been applied, or injunction against future application of statute or ordinance in allegedly impermissible manner in which is it shown to have been applied in past.
See publication Words and Phrases for other judicial constructions and definitions.

[3] CONSTITUTIONAL LAW 9247
"As applied" challenge to constitutionality of statute contemplates analysis of facts of particular case or cases to determine circumstances in which statute or ordinance has been applied and to consider whether in those particular circumstances application deprived individual to whom it was applied of protected right.

[4] CONSTITUTIONAL LAW 9247
When criminal defendant claims that facially valid statute or ordinance has been applied in constitutionally impermissible manner to defendant, court evaluates propriety of application on case-by-case basis to determine whether to relieve defendant of sanction.

[5] INJUNCTION 21285(2)
If plaintiff seeks to enjoin future, allegedly impermissible types of application of facially valid statute or ordinance, plaintiff must demonstrate that such application is occurring or has occurred in past.

[6] CONSTITUTIONAL LAW 9246(1), 9247
When criminal defendant seeks relief from present application of criminal statute or ordinance on constitutional grounds, it is not administrative agency's application of statute that is determinative; whether particular application of statute declaring conduct criminal is constitutionally permissible can be determined only after circumstances of its application have been established by conviction or otherwise and only then is "as applied" challenge ripe.

[7] CONSTITUTIONAL LAW 9242(2)
To obtain mandate or other relief from penalties imposed under past application of law, upon constitutional challenge, defendant must presently be suffering some adverse impact of law which court has power to address.

[8] INJUNCTION 21285(2)
If it is contended that otherwise valid statute has been applied in constitutionally impermissible manner in past and plaintiff seeks injunction against future application of statute in that manner, plaintiff must show pattern of impermissible enforcement.

[9] DECLARATORY JUDGMENT 118A300, MANDAMUS 25023(1)
In most cases, plaintiff seeking injunction against future application of statute which has allegedly been applied in constitutionally impermissible manner, either by petition for writ of mandamus or complaint for declaratory and injunctive relief, must have sufficient beneficial interest to have standing to prosecute action, and there must be present impermissible application of challenged statute or ordinance which court can remedy.

[10] INJUNCTION 212114(2)
Plaintiffs, as taxpayers, had standing under statute to restrain illegal expenditure or waste of city funds on future enforcement of unconstitutional ordinance or impermissible means of enforcement of facially valid ordinance. West's Ann.Cal.C.C.P. 526a.

[11] CONSTITUTIONAL LAW 9247
Petition for writ of mandate did not clearly state "as applied" challenge to constitutionality of ordinance banning camping and storage of personal property in designated public areas, nor did petition seek relief from constitutionally impermissible applications or methods of enforcing ordinance and, thus, only facial challenge to ordinance was perfected; sole relief sought in petition was writ of mandate enjoining any application or ordinance to person in any circumstance, which relief was kind of relief sought in facial attack and, moreover, plaintiffs did not create factual record on which injunction limited to improper applications of ordinance could have been fashioned. Santa Ana, Cal., Municipal Code Article VIII, ss 10-402, 10-403.

[12] CONSTITUTIONAL LAW 9247
Even assuming that plaintiffs did attempt to allege and prosecute "as applied" challenge to constitutionality of ordinance banning camping and storage of personal property in designated public areas, and that trial court did entertain plaintiffs' argument that they had mounted "as applied" challenge to ordinance, trial court did not err in failing to rule on "as applied" challenge, as plaintiffs did not perfect basis for ruling on such challenge; plaintiffs did not demonstrate that ordinance had been enforced in constitutionally impermissible manner against homeless persons who had no alternative but to "camp" on public property. Santa Ana, Cal., Municipal Code Article VIII, ss 10-402, 10-403.

[13] CONSTITUTIONAL LAW 9247
Petition for writ of mandate to compel municipal court, in which petitioners were charged with violation of ordinance banning camping and storage of personal property in designated public areas, to sustain petitioners' demurrer to complaint and to dismiss charges could not, due to its procedural posture, present "as applied" challenge to constitutionality of ordinance; petitioners could not, on demurrer to accusatory pleading, offer evidence that ordinance was invalid as applied to their individual circumstances. West's Ann.Cal.Penal Code 1004; Santa Ana, Cal., Municipal Code Article VIII, ss 10-402, 10-403.

[14] INDICTMENT AND INFORMATION 210146
Demurrer to criminal complaint lies only to challenge sufficiency of pleading and raises only issues of law. West's Ann.Cal.Penal Code 1004.

[15] INDICTMENT AND INFORMATION 210147
Grounds other than those in Penal Code section specifying grounds on which demurrer may be made may not be urged in support of "common-law demurrer" raising constitutional and other attacks on sufficiency of accusatory pleading; abrogating Jackson, 171 Cal.App.3d 609. West's Ann.Cal.Penal Code 1004.

[16] CONSTITUTIONAL LAW 9282(1)
Although neither criminal justice system nor judiciary is equipped to resolve chronic social problems, criminalizing conduct that is product of those problems is not for that reason constitutionally impermissible.

[17] APPEAL AND ERROR 30863
Procedural posture of case is crucial to determining proper scope of appellate review.

[18] APPEAL AND ERROR 30169
Procedural posture of case determines ability of parties to exercise their right to present relevant evidence and to creation of a full record adequate to enable reviewing court to make reasoned decision on questions before it; when appellate court fails to limit scope of review to issues properly presented in trial court, it denies litigants their right to have appellate questions decided on basis of full record which exposes all of relevant facts and circumstances.

[19] CONSTITUTIONAL LAW 9270.3(2), MUNICIPAL CORPORATIONS 268120, STATUTES 361181(1)
While intent or purpose of legislative body must be considered in construing ambiguous statute or ordinance, motive of legislative body is generally irrelevant to validity of statute or ordinance.

[20] DISORDERLY CONDUCT 1291
Ordinance banning camping and storage of personal property in designated public areas was not subject to attack on basis that city council may have hoped that impact of ordinance would be to discourage homeless persons from moving to city, absent basis for believing that ordinance would not have been adopted if public areas of city had been appropriated for living accommodation by any group other than homeless, or that it was intent of city council that ordinance be enforced only against homeless persons. Santa Ana, Cal., Municipal Code Article VIII, ss 10-402, 10-403.

[21] CONSTITUTIONAL LAW 9242.2(1)
If statute clearly applies to criminal defendant's conduct, defendant may not challenge it on grounds of vagueness.

[22] CONSTITUTIONAL LAW 9242.1(3)
In some cases, criminal defendant may make facial challenge to statute, if he argues that statute improperly prohibits substantial amount of constitutionally protected conduct, whether or not its application to his own conduct may be constitutional.

[23] MANDAMUS 25039, 25043
Petitioners for writ of mandate to compel municipal court to sustain their demurrer and dismiss charges alleging violation of ordinance banning camping and storage of personal property in designated public areas could not show that ordinance did not clearly apply to their conduct, as their challenge to ordinance was brought by demurrer and nature of their conduct had not been determined, and to that extent, their vagueness challenge to ordinance was premature. West's Ann.Cal.Penal Code 1004; Santa Ana, Cal., Municipal Code Article VIII, ss 10-402, 10-403.

[24] CONSTITUTIONAL LAW 9283(4.1)
Although no provision of Federal Constitution expressly recognizes right to travel among and between states, that right is recognized as fundamental aspect of federal union of states.

[25] CONSTITUTIONAL LAW 9283(4.1)
State may not create classifications which, by imposing burdens or restrictions on newer residents which do not apply to all residents, deter or penalize migration of persons who exercise their right to travel to state.

[26] CONSTITUTIONAL LAW 9283(4.1)
Under equal protection analysis, if there is any rational relationship between purpose of statute or ordinance and legitimate government objective, law must be upheld despite indirect or incidental burdens on travel. U.S.C.A. Const.Amend. 14; West's Ann.Cal. Const. Art. 1, ss 7, 24.

[27] CONSTITUTIONAL LAW 9283(4.1), DISORDERLY CONDUCT 1291
City ordinance banning camping and storage of personal property in designated public areas was not constitutionally invalid despite any incidental impact on right of some persons to interstate or intrastate travel; ordinance was nondiscriminatory one which forbid use of public streets, parks and property by residents and nonresidents alike for purposes other than those for which property was designed. U.S.C.A. Const.Amend. 14; West's Ann.Cal. Const. Art. 1, ss 7, 24; Santa Ana, Cal., Municipal Code Article VIII, ss 10-402, 10-403.

[28] CONSTITUTIONAL LAW 9248(1), 9248(3)
All presumptions favor validity of statute and court may not declare statute invalid unless it is clearly so.

[29] CONSTITUTIONAL LAW 9283(4.1)
Constitutional right to travel does not endow citizens with "right to live or stay where one will"; while individual may travel where he will and remain in chosen location, that constitutional guaranty does not confer immunity against local trespass laws and does not create right to remain without regard to ownership of property on which he chooses to live or stay, be it public or privately owned property. U.S.C.A. Const.Amend. 14; West's Ann.Cal. Const. Art. 1, 7, 24.

[30] CONSTITUTIONAL LAW 9282(1)
With few exceptions, creation or recognition of constitutional right does not impose on state or governmental subdivision obligation to provide its citizens with means to enjoy that right.

[31] SOCIAL SECURITY AND PUBLIC WELFARE 356A3
If inability of homeless persons in city to afford housing accounted for their need to camp on public property, their recourse lay not with city, but with county, to which legislature had allocated responsibility to assist destitute persons. West's Ann.Cal.Welf. & Inst.Code ss 17000-17001.5.

[32] CONSTITUTIONAL LAW 9247
Whether involuntarily homeless person who involuntarily camped on public property could be convicted or punished under ordinance banning camping and storage of personal property in designated public areas, which issue could have been raised as "as applied" challenge to ordinance, was not before court, as plaintiffs challenging facial constitutionality of ordinance offered no evidence that ordinance was being applied in that manner. Santa Ana, Cal., Municipal Code Article VIII, ss 10-402, 10-403.

[33] CRIMINAL LAW 1101213.2(1)
Neither language of ordinance banning camping and storage of personal property in designated public areas nor evidence submitted in support of challenge to constitutionality of statute supported conclusion that person could be convicted and punished under ordinance solely on basis that he or she had no fixed place of abode, so as to support claim that statute violated Eighth Amendment prohibition of cruel and unusual punishment and parallel provision of State Constitution on ground that ordinance imposed punishment for involuntary status of being homeless. U.S.C.A. Const.Amend. 8; West's Ann.Cal. Const. Art. 1, 17.

[34] DISORDERLY CONDUCT 1291, MUNICIPAL CORPORATIONS 268594(2)
Nonexclusive list of examples of camping "paraphernalia" and "facilities" and definitions of those terms for purposes of statute banning camping and storage of personal property in designated public areas did not render those terms unconstitutionally vague when purpose clause of ordinance was considered and terms were properly read in context; there was no possibility that law enforcement agent would believe that picnic in public park constituted "camping" or that leaving towel on beach or umbrella in library constituted "storage" of property in violation or ordinance. West's Ann.Cal. Const. Art. 1, 7; Santa Ana, Cal., Municipal Code Article VIII, ss 10-402, 10-403.

[35] CONSTITUTIONAL LAW 92258(2)
To satisfy constitutional provision against statutory vagueness, statute must be sufficiently definite to provide adequate notice of conduct proscribed, and statute must provide sufficiently definite guidelines for police in order to prevent arbitrary and discriminatory enforcement, but only reasonable degree of certainty is required. U.S.C.A. Const.Amends. 5, 14; West's Ann.Cal. Const. Art. 1, 7.

[36] CONSTITUTIONAL LAW 9283(4.1)
Ordinance banning camping and storage of personal property in designated public areas was not unconstitutionally overbroad; there was no impermissible restriction on right to travel, nor was there any right to use public property for living accommodations or for storage of personal possessions except insofar as government permitted such use by ordinance or regulation. Santa Ana, Cal., Municipal Code Article VIII, ss 10-402, 10-403.

[36] DISORDERLY CONDUCT 1291
Ordinance banning camping and storage of personal property in designated public areas was not unconstitutionally overbroad; there was no impermissible restriction on right to travel, nor was there any right to use public property for living accommodations or for storage of personal possessions except insofar as government permitted such use by ordinance or regulation. Santa Ana, Cal., Municipal Code Article VIII, ss 10-402, 10-403.

[37] DISORDERLY CONDUCT 1291
City ordinance banning camping and storage of personal property in designated public areas did not exceed police power of city; there is no fundamental right to camp on public property, persons who do so are not suspect classification, and it was not claimed that ordinance was invidiously discriminatory on its face. West's Ann.Cal.Penal Code 647c; West's Ann.Cal.Pub.Res.Code 5193; Santa Ana, Cal., Municipal Code Article VIII, ss 10-402, 10-403.

[38] MUNICIPAL CORPORATIONS 268691.1
City not only has power to keep its streets and other public property open and available for purpose to which they are dedicated, but has duty to do so.

[39] CONSTITUTIONAL LAW 9282(4)
Facial challenge to law on grounds that it is overbroad and vague is assertion that law is invalid in all respects and could not have any valid application or claim that law sweeps in substantial amount of constitutionally protected conduct. U.S.C.A. Const.Amends. 5, 14; West's Ann.Cal. Const. Art. 1, 7.

[40] CONSTITUTIONAL LAW 9282(4)
Constitutional concepts of "vagueness" and "overbreadth" are related, in sense that if law threatens exercise of constitutionally protected right a more stringent vagueness test applies. U.S.C.A. Const.Amends. 5, 14; West's Ann.Cal. Const. Art. 1, 7.

See publication Words and Phrases for other judicial constructions and definitions.

405

Opinion Continued


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