TOBE v. CITY OF SANTA ANA

Robert J. Cohen, Crystal C. Sims, William Wise, Harry Simon, Kim Savage, Gill Deford, Lloyd A. Charton, Ivette Pena, Richard A. Rothschild, John E. Huerta, Gary Blasi, Robin S. Toma, Cathy Jensen, Paul L. Hoffman, Mark Rosenbaum, Scott Wylie, Christopher B. Mears, Schiff, Hardin & Waite, Michael L. Brody and Lisa A. Dunsky, for plaintiffs and appellants.

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Janet Reno, U.S. Atty. Gen., Deval L. Patrick, U.S. Asst. Atty. Gen., Jessica Dunsay Silver, Thomas E. Chandler, Munger, Tolles & Olson, Jeffrey L. Bleich, Jonathan E. Altman, Michael R. Doyen, Susan R. Szabo, Inez D. Hope, Pamel A. Mohr, Maria Foscarinis, Jenner & Block, Carl S. Nadler, Thomas J. Perrelli, Blumenfeld & Cohen and Glenn B. Manishin as Amici Curiae on behalf of plaintiffs and appellants.

Edward J. Cooper, City Atty., and Robert J. Wheeler, Asst. City Atty., for defendants and respondents.

San Francisco), Linda M. Ross and Michael E. Olsen, Deputy City Attys., Ronald A. Zumbrun, Anthony T. Caso, John G. Schmidt, Jr., Robert Teir, Michael J. Schroeder, Wilmer, Cutler & Pickering, Andrew N. Vollmer and Thomas Clark as Amici Curiae on behalf of defendants and respondents. Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Kevin J. Phillips, Deputy Public Defender, for petitioners.

O'Melveny & Myers, Phillip R. Kaplan, Brett J. Williamson, John C. Hueston and Linda A. Bagley as Amici Curiae on behalf of petitioners.

No appearance for respondent.

Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., Wallace J. Wade, Asst. Dist. Atty., Kathleen M. Harper, David L. Himelson and E. Thomas Dunn, Jr., Deputy Dist. Attys., for real party in interest.

Kent S. Scheidegger as Amicus Curiae on behalf of real party in interest.

BAXTER, Associate Justice.

The Court of Appeal invalidated, on constitutional grounds, an ordinance of the City of Santa Ana (Santa Ana) which banned "camping" and storage of personal property, including camping equipment, in designated public areas. We granted the petitions for review of Santa Ana and the People to consider whether the ordinance is valid on its face and whether either of the actions involved in the consolidated appeal stated an "as applied" challenge to the ordinance.

We conclude only a facial challenge was perfected in the lower courts and that the Santa Ana ordinance is valid on its face. It does not impermissibly restrict the right to travel, does not permit punishment for status, and is not unconstitutionally vague or overbroad, the only constitutional claims pursued by plaintiffs. [1]

We shall, therefore, reverse the judgment of the Court of Appeal.

I
BACKGROUND

In October 1992, Santa Ana added article VIII, section 10-400 et seq. (the ordinance) to its municipal code. The declared purpose of the ordinance was to maintain public streets and other public areas in the city in a clean and accessible condition. Camping and storage of personal property in those areas, the ordinance recited, interfered with the rights of others to use those areas for the purposes for which they were intended. The ordinance provides:

"Sec. 10-402. Unlawful Camping.
"It shall be unlawful for any person to camp, occupy camp facilities or use camp paraphernalia in the following areas, except as otherwise provided:
"(a) any street;
"(b) any public parking lot or public area, improved or unimproved.
"Sec. 10-403. Storage of Personal Property in Public Places.


[1 The Tobe petition for writ of mandate stated a cause of action based on an alleged violation of equal protection. The petition alleged in support of the equal protection claim only that the respondents had not and would not arrest nonhomeless persons who engaged in the same conduct for which the plaintiffs had been arrested. They offered no evidence to support that equal protection theory and did not argue an equal protection claim in the Court of Appeal or in this court. We deem that claim to have been abandoned. The Zuckernick petition did not make an equal protection claim.]

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"It shall be unlawful for any person to store personal property, including camp facilities and camp paraphernalia, in the following areas, except as otherwise provided by resolution of the City Council:
"(a) any park;
"(b) any street;
"(c) any public parking lot or public area, improved or unimproved." [2]

Plaintiffs in these consolidated actions [3] are: (1) homeless persons and taxpayers who appealed from a superior court order which struck "to live temporarily in a camp facility or outdoors" from the ordinance, [4] but otherwise denied their petition for writ of mandate by which they sought to bar enforcement of the ordinance (Tobe), [5] and (2) persons who, having been charged with violating the ordinance, demurred unsuccessfully to the complaints and thereafter sought mandate to compel the respondent municipal court to sustain their demurrers (Zuckernick).

Plaintiffs offered evidence to demonstrate that the ordinance was the culmination of a four-year effort by Santa Ana to expel homeless persons. There was evidence that in 1988 a policy was developed to show "vagrants" that they were not welcome in the city. To force them out, they were to be continually moved from locations they frequented by a task force from the city's police and recreation and parks departments; early park closing times were to be posted and strictly enforced; sleeping bags and accessories were to be disposed of; and abandoned shopping carts were to be confiscated. Providers of free food were to be monitored; sprinklers in the Center Park were to be turned on often; and violations of the city code by businesses and social service agencies in that area were to be strictly enforced. This effort led to a lawsuit which the city settled in April 1990.

Santa Ana then launched an August 15, 1990, sweep of the civic center area arresting and holding violators for offenses which included blocking passageways, drinking in public, urinating in public, jaywalking, destroying vegetation, riding bicycles on the sidewalk, glue sniffing, removing trash from a bin, and violating the fire code. Some conduct involved nothing more than dropping a match, leaf, or piece of paper, or jaywalking. The arrestees were handcuffed and taken to an athletic field where they were booked, chained to benches, marked with numbers, and held for up to six hours, after which they were released at a different location. Homeless persons among the arrestees claimed they were the victims of discriminatory enforcement. The municipal court found that they had been singled out for arrest for offenses that rarely, if ever, were the basis for even a citation.

In October 1990, Santa Ana settled a civil action for injunctive relief, agreeing to refrain from discriminating on the basis of homelessness, from taking action to drive the


[2 Section 10-401 of the ordinance defines the terms: "(a) Camp means to pitch or occupy camp facilities; to use camp paraphernalia. "(b) Camp facilities include, but are not limited to, tents, huts, or temporary shelters. "(c) Camp paraphernalia includes, but is not limited to, tarpaulins, cots, beds, sleeping bags, hammocks or non-city designated cooking facilities and similar equipment. "(d) Park means the same as defined in section 31-1 of this Code. "(e) Store means to put aside or accumulate for use when needed, to put for safekeeping, to place or leave in a location. "(f) Street means the same as defined in section 1-2 of this Code."]

[3 The Court of Appeal opinion recites that the appeal and the mandate petition had been consolidated. We find no order in the record consolidating the appeal of the Tobe parties and the mandate petition of the Zuckernick parties in that court, however. We deem the recital in the Court of Appeal opinion to be such an order.]

[4 The ordinance has been amended accordingly. That action is not disputed by the parties.]

[5 Although the Tobe petition is denominated a petition for writ of "Mandate/Prohibition," prohibition lies only to restrain "the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person." (Code Civ.Proc., 1102.) None of the named respondents exercises judicial functions in the enforcement of the ordinance. We consider the petition one for mandamus alone therefore. (Neal v. State of California (1960) 55 Cal.2d 11, 16, 9 Cal.Rptr. 607, 357 P.2d 839.)]

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homeless out of the city, and from conducting future sweeps and mass arrests. That case, which was to be dismissed in 1995, was still pending when the camping ordinance was passed in 1992. Evidence in the form of declarations regarding the number of homeless and facilities for them was also offered. In 1993 there were from 10,000 to 12,000 homeless persons in Orange County and 975 permanent beds available to them. When National Guard armories opened in cold weather, there were 125 additional beds in Santa Ana and another 125 in Fullerton. On any given night, however, the number of shelter beds available was more than 2,500 less than the need.

The Court of Appeal majority, relying in part on this evidence, concluded that the purpose of the ordinance--to displace the homeless--was apparent. On that basis, it held that the ordinance infringed on the right to travel, authorized cruel and unusual punishment by criminalizing status, and was vague and overbroad. The city contends that the ordinance is constitutional on its face. We agree. We also conclude that, if the Tobe petition sought to mount an as applied challenge to the ordinance, it failed to perfect that type of challenge.

II
PRELIMINARY CONSIDERATIONS

A. Facial or As Applied Challenge.

Plaintiffs argue that they have mounted an as applied challenge to the ordinance as well as a facial challenge. While they may have intended both, we conclude that no as applied challenge to the ordinance was perfected. The procedural posture of the Zuckernick action precludes an as applied challenge, which may not be made on demurrer to a complaint which does not describe the allegedly unlawful conduct or the circumstances in which it occurred. The Tobe plaintiffs did not clearly allege such a challenge or seek relief from specific allegedly impermissible applications of the ordinance. Moreover, assuming that an as applied attack on the ordinance was stated, the plaintiffs did not establish that the ordinance has been applied in a constitutionally impermissible manner either to themselves or to others in the past.

Because the Court of Appeal appears to have based its decision in part on reasoning that would be appropriate to a constitutional challenge based on a claim that, as applied to particular defendants, the Santa Ana ordinance was invalid, we must first consider the nature of the challenge made by these petitioners.

[1] A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. (Dillon v. Municipal Court (1971) 4 Cal.3d 860, 865, 94 Cal.Rptr. 777, 484 P.2d 945.) " 'To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute .... Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.' " (Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267, 5 Cal.Rptr.2d 545, 825 P.2d 438, quoting Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180- 181, 172 Cal.Rptr. 487, 624 P.2d 1215.)

[2,3,4] An as applied challenge may seek (1) relief from a specific application of a facially valid statute or ordinance to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute or ordinance has been applied, or (2) an injunction against future application of the statute or ordinance in the allegedly impermissible manner it is shown to have been applied in the past. It contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right. (See, e.g., Broadrick v. Oklahoma (1973) 413 U.S. 601, 615-616, 93 S.Ct. 2908, 2917-2918, 37

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L.Ed.2d 830; County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 672, 114 Cal.Rptr. 345, 522 P.2d 1345; In re Marriage of Siller (1986) 187 Cal.App.3d 36, 49, 231 Cal.Rptr. 757.) When a criminal defendant claims that a facially valid statute or ordinance has been applied in a constitutionally impermissible manner to the defendant, the court evaluates the propriety of the application on a case-by- case basis to determine whether to relieve the defendant of the sanction. (Hale v. Morgan (1978) 22 Cal.3d 388, 404, 149 Cal.Rptr. 375, 584 P.2d 512.)

[5] If a plaintiff seeks to enjoin future, allegedly impermissible, types of applications of a facially valid statute or ordinance, the plaintiff must demonstrate that such application is occurring or has occurred in the past. In Bowen v. Kendrick (1988) 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520, for instance, the court first distinguished the nature of facial and as applied challenges to a statute which authorized federal grants to organizations for services related to premarital adolescent sexual relations and pregnancy. The plaintiffs had standing as taxpayers to raise an establishment clause challenge to the statute and to its application. The Supreme Court held that the as applied challenge could be resolved only by considering how the statute was being administered. Plaintiffs had to show that specific grants were impermissible because the grants went to " 'pervasively sectarian' religious institutions" or had been used to fund " 'specifically religious activit[ies].' " (487 U.S. at p. 621, 108 S.Ct. at p. 2581.) The matter was remanded because the district court had not identified the particular grantees or the particular aspects of their programs for which constitutionally improper expenditures had been made. Finally, the court held, a remedy should be fashioned to withdraw federal agency approval of such grants.

[6][7] When a criminal defendant seeks relief from a present application of a criminal statute or ordinance on constitutional grounds, it is not the administrative agency's "application" of the statute that is determinative, however. Whether the particular application of a statute declaring conduct criminal is constitutionally permissible can be determined only after the circumstances of its application have been established by conviction or otherwise. (See e.g. Murgia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44.) Only then is an as applied challenge ripe. To obtain mandate or other relief from penalties imposed under a past application of the law, the defendant must presently be suffering some adverse impact of the law which the court has the power to redress.

[8] If instead it is contended that an otherwise valid statute has been applied in a constitutionally impermissible manner in the past and the plaintiff seeks an injunction against future application of the statute in that manner, the plaintiff must show a pattern of impermissible enforcement. (See, e.g., Van Atta v. Scott (1980) 27 Cal.3d 424, 166 Cal.Rptr. 149, 613 P.2d 210; White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222; Wirin v. Horral (1948) 85 Cal.App.2d 497, 193 P.2d 470; cf. Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 232 Cal.Rptr. 814, 729 P.2d 80.)

[9] In most cases a plaintiff seeking this relief, either by a petition for writ of mandamus or complaint for declaratory and injunctive relief, must have a sufficient beneficial interest to have standing to prosecute the action, and there must be a present impermissible application of the challenged statute or ordinance which the court can remedy. "[Code of Civil Procedure] [s]ection 1086 expresses the controlling statutory requirements for standing for mandate: 'The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.' The requirement that a petitioner be 'beneficially interested' has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large." (Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796, 166 Cal.Rptr. 844, 614 P.2d 276.)

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[10] We need not decide if the Tobe plaintiffs have such a beneficial interest even though two have never been cited under the ordinance and one is not a homeless person, because as taxpayers they have standing under Code of Civil Procedure section 526a to restrain illegal expenditure or waste of city funds on future enforcement of an unconstitutional ordinance or an impermissible means of enforcement of a facially valid ordinance. (White v. Davis, supra, 13 Cal.3d 757, 764, 120 Cal.Rptr. 94, 533 P.2d 222.) We must determine, therefore, whether the petitions at issue in this case stated and have perfected an as applied challenge to the Santa Ana ordinance.

1. The Tobe petition

[11] The first of these actions (Tobe) has been prosecuted as a petition for writ of mandate by two homeless residents of Santa Ana, each of whom intends to remain in the city, and neither of whom can find affordable housing. The third plaintiff is a resident of Santa Ana. All are taxpayers. Respondents are Santa Ana, its mayor, its city manager, and its police chief. Plaintiffs allege that they have been convicted in the past for violating the ordinance and expect to be arrested in the future for sleeping in public and conducting other ordinary and necessary daily activities in public areas. The allegations of the petition do not describe the circumstances of the past arrests and the petition does not allege or describe either the arrests or convictions of other persons that are claimed to have been unconstitutional applications of the ordinance.

The petition alleges that respondents' "pattern of arresting, detaining, harassing and incarcerating involuntarily homeless persons such as petitioners, for sleeping and engaging in other ordinary and essential activities of daily life" violates the rights of homeless persons. The only allegations that describe the pattern of enforcement that is claimed to be constitutionally impermissible are ones which state that respondents have caused plaintiffs and other homeless persons to risk arrest and/or detention without probable cause and other "abuses, indignities and punishment" for their homeless status and presence in Santa Ana. Although the petition alleges in conclusory language that a pattern of constitutionally impermissible enforcement of the ordinance existed, plaintiffs never identified the particular applications of the law to be enjoined. The only relief sought in the petition is a writ of mandate enjoining any enforcement of the ordinance by respondents. That relief is the kind of relief sought in a facial attack.

Moreover, no alternative writ was issued and no evidentiary hearing was held. Plaintiffs did not create a factual record on which an injunction limited to improper applications of the ordinance could have been fashioned.

Thus, notwithstanding the contrary conclusion of the dissent, the allegations of the petition did not clearly state an as applied challenge to the ordinance and the petition did not seek relief from constitutionally impermissible applications or methods of enforcing the ordinance. The petition sought to enjoin any application of the ordinance to any person in any circumstance. And, contrary to the view of the dissent, which relies on "concessions" of the parties and the reporter's transcript, rather than the actual judgment of the court, the superior court did not rule on the petition as one encompassing an as applied challenge. The order of that court which directed issuance of a peremptory writ invalidating one sentence of the ordinance as vague, did not identify or dispose of any such challenge.

Instead, the court found only that "enforcement of Santa Ana Ordinance NS-2160 ... does not violate the rights of homeless persons to freedom of movement" and that "petitioners' challenges to the constitutionality of the remaining portions of Santa Ana Ordinance NS-2160 are without merit."

The petition sought to enjoin enforcement of the ordinance on the ground that it was invalid because it violated the rights of the homeless. The court ruled that enforcement did not violate those rights. The court made no findings related to a pattern of enforcement of the ordinance and the judgment makes no mention of the manner in which the ordinance has been applied.

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Opinion Continued


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