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 92§47
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 92§47
"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 92§47
"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 92§47
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 212§85(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 92§46(1), 92§47
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 92§42(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 212§85(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 118A§300, MANDAMUS 250§23(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 212§114(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 92§47
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 92§47
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 92§47
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 210§146
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 210§147
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 92§82(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 30§863
Procedural posture of case is crucial to determining proper scope
of appellate review.
[18] APPEAL AND ERROR 30§169
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 92§70.3(2), MUNICIPAL CORPORATIONS 268§120, STATUTES 361§181(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 129§1
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 92§42.2(1)
If statute clearly applies to criminal defendant's conduct,
defendant may not challenge it on grounds of vagueness.
[22] CONSTITUTIONAL LAW 92§42.1(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 250§39, 250§43
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 92§83(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 92§83(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 92§83(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 92§83(4.1), DISORDERLY CONDUCT 129§1
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 92§48(1), 92§48(3)
All presumptions favor validity of statute and court may not
declare statute invalid unless it is clearly so.
[29] CONSTITUTIONAL LAW 92§83(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 92§82(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 356A§3
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 92§47
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 110§1213.2(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 129§1, MUNICIPAL CORPORATIONS 268§594(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 92§258(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 92§83(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 129§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.
[37] DISORDERLY CONDUCT 129§1
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 268§691.1
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 92§82(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 92§82(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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