TOBE v. CITY OF SANTA ANA

I. Facial and As Applied Claims

The majority conclude that this action raises only facial claims.

I disagree.

a. Pleadings and Proceedings Below

The Tobe plaintiffs expressly pleaded both facial and as applied claims in their petition for writ of mandate. [2] They also submitted factual evidence to support both the as applied and facial claims, including expert declarations

[2 Thus the petition alleged that the City had a "custom, practice, and policy of harassing, arresting, and otherwise interfering with petitioners and other homeless individuals for engaging in ordinary and essential activities of daily life in the public areas where petitioners are forced to live." Plaintiffs specifically pleaded, inter alia, that respondents "abused their discretion in enacting and selectively enforcing Ordinance NS-2160 against homeless persons in violation of their right to equal protection in that the ordinance abridges the fundamental right of the homeless to travel and to freedom of movement." (Italics added.) The petition expressly challenged particular applications of the ordinance, including the practice of arresting homeless persons for sleeping and possessing property in public areas. In their prayer for relief plaintiffs requested issuance of a peremptory writ of mandate compelling the City to refrain from enforcing the ordinance, i.e., the equivalent of an injunction against future application of the ordinance.]

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and declarations by individual plaintiffs and others.

In opposing the writ, the City expressly acknowledged and addressed the Tobe plaintiffs' as applied claims. Thus, it conceded in its memorandum in opposition to the petition that "the present case involves a constitutional attack on a municipal ordinance, both as applied and as written, which, inter alia, prohibits camping on public property." (Italics added.) The City also conceded that "petitioners contend that the ordinance, as applied to them, abridges their right to travel" and that "petitioners contend that the Ordinance, as applied to homeless persons, punishes the status and condition of homelessness." (Italics added.)

At the hearing on their petition in the trial court, plaintiffs again expressly argued that the ordinance violated the Eighth Amendment and abridged the right to travel both on its face and as applied. [3] The trial court repeatedly acknowledged that the claims included both facial and as applied challenges. Thus it stressed that the "thrust of this case" was the contention that the ordinance "is designed and enacted and implemented as an effort to address a perceived problem by the authorities of the City of Santa Ana that regards the people who have been classified generically as, quote, 'homeless,' end quote." (Italics added.) The court expressly observed that the claims based on the right to travel and on the Eighth Amendment involved the "application of the statute," and it expressly considered how the ordinance "in application ... has a tendency to impact certain classes of people more than others." (Italics added.)

The trial court properly addressed the vagueness and overbreadth claims solely as facial challenges; they were brought as such. By contrast, however, in rejecting the right to travel and Eighth Amendment claims the court did not indicate that it was limiting itself to a facial analysis or that it was precluded from considering the factual evidence submitted by plaintiffs. Indeed, as the City has repeatedly conceded, the court expressly considered and rejected plaintiffs' as applied arguments, together with the portions of the evidence that plaintiffs brought to its attention in support of those arguments. [4]

The City did not submit evidence or attempt to dispute or rebut the evidence submitted by plaintiffs, much of it derived from the City's own records. At oral argument before this court the City conceded that it was not precluded in the trial court from presenting evidence or disputing the declarations submitted by plaintiffs; it had the opportunity to present and rebut evidence but chose not to do so. As the record clearly shows, the City's strategy was to argue that the ordinance, both facially and as applied, was a valid exercise of its police power. It therefore regarded the evidence submitted by plaintiffs as essentially irrelevant. I have no trouble concluding that the City's strategy in this regard resulted in a waiver. In its order directing issuance of a peremptory writ of mandate, the trial court ruled that "enforcement of Santa Ana Ordinance

[3 Thus counsel for plaintiffs argued: "If the court were to conclude that the Ordinance on its face does not abridge the right to travel then I would submit to the court by way of our declarations and exhibits ... that in fact as applied this ordinance abridges the right to travel of petitioners and homeless residents of the City of Santa Ana." (Italics added.)]

[4 Again, during oral argument before this court the City was pressed on the question whether plaintiffs raised as applied claims; it candidly admitted that plaintiffs challenged the ordinance both facially and as applied and that the Court of Appeal properly addressed the as applied claims. In supplemental briefing, the City once more conceded that plaintiffs raised both facial and as applied claims in the writ petition, that both parties addressed facial and as applied claims in their memoranda, and that they "argued both aspects of the right to travel/equal protection issue" at the hearing in the trial court. (Italics added.) As the City also conceded: "It is clear from a review of the reporter's transcript of the April 8, 1993 hearing that Judge Smith upheld the constitutionality of the ordinance, both as written and as applied. In rejecting appellants' 'as applied' attack, Judge Smith rejected appellants' supporting evidence." (Italics added.) These frank concessions by the City, which it documented with specific citations to the record, squarely refute the majority's conclusions that the allegations of the petition did not clearly state an as applied challenge and that the trial court did not rule on the petition as one encompassing an as applied challenge. (See maj. opn., ante, p. 411 of 40 Cal.Rptr.2d, p. 1154 of 892 P.2d.)]

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NS- 2160 ... does not violate the rights of homeless persons to freedom of movement.... The Court further finds that petitioners' challenges to the constitutionality of the remaining portions of Santa Ana Ordinance NS-2160 are without merit. The Court finds that with the exception of the second clause of Santa Ana Municipal Code § 10-401(a), Santa Ana Ordinance NS-2160 is constitutionally valid." (Italics added.) Nothing quoted in the order demonstrates that the trial court intended to, or did, address only the facial claims. [5] On the contrary, the order appears on its face to reject both facial and as applied claims: the court expressly and specifically refers to "enforcement" of the ordinance and to its constitutionality vis-a-vis the "rights of homeless persons."

The majority nonetheless conclude--despite the order, the transcript of the hearing, and the concessions of the parties--that no as applied challenge to the ordinance was "perfected." But they point to no deficiency in the pleadings. Instead, they merely note that "plaintiffs never identified the particular applications of the law to be enjoined," and the "only relief sought in the petition is a writ of mandate enjoining any enforcement of the ordinance by respondents." (Maj. opn., ante, p. 411 of 40 Cal.Rptr.2d, p. ---- of 892 P.2d.) [6] The City made no objection on that ground, nor is there any indication in the record that the trial court declined to address the as applied claims on that basis. Certainly, had the trial court found merit in the as applied claims, it could readily have fashioned appropriate relief. [7]

b. Justiciability and Standing

Plaintiffs include persons who have been cited under the ordinance and who, because they are homeless, are likely to be cited again. They thus have a direct personal stake in the outcome of this action. [8]

[5 The majority purport to rely only on the "actual judgment of the court" and not on the concessions of parties and the reporter's transcript of the hearing on the writ. (Maj. opn., ante, p. 411 of 40 Cal.Rptr.2d, p. 1154 of 892 P.2d.) The judgment, however, does not refer to the grounds of the ruling. It provides in its entirety: "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: [P ] 1. Judgment is entered for petitioners granting the Peremptory Writ of Mandate. [P ] 2. The Court reserves jurisdiction over the issues of attorney's fees and costs. Any motion for attorney's fees and costs shall be filed in this Department."]

[6 Although the majority observe that "the petition alleges in conclusory language that a pattern of unconstitutionally impermissible enforcement of the ordinance existed" (maj. opn., ante, p. 411 of 40 Cal.Rptr.2d, p. ---- of 892 P.2d), there can be no doubt that under California's liberal pleading rules the petition was adequately pleaded: it gave notice of the claims and clearly alleged a pattern of constitutionally impermissible enforcement. The undisputed declarations in support of the petition show with specificity that the ordinance was repeatedly enforced against persons who were homeless. The prayer seeks relief as follows: "That a peremptory writ of mandate issue pursuant to Code of Civil Procedure Section 1085 compelling respondents to refrain from enforcement of Santa Ana Municipal Code Section NS02160 ... [S]uch other and further relief as the Court may deem just and proper." The majority fail to identify any requirement of the Code of Civil Procedure or local rules that plaintiffs further delineate the relief sought on their as applied claims. Indeed, it is a rule of long standing that when an answer is filed a court may grant any relief consistent with the issues raised. (See e.g., Wright v. Rogers (1959) 172 Cal.App.2d 349, 367-368, 342 P.2d 447.)]

[7 For example, the court could have required that the City enforce the provisions of the ordinance prohibiting sleeping or storing personal property only against those persons who are not homeless. An ordinance that prevented only those with homes from "camping" in public areas might be constitutional; it would, of course, be of limited practical utility.]

[8 The majority question whether plaintiffs are "truly"--or even sufficiently--homeless, concluding that the declarations they submitted did not establish that the conduct for which they were cited was "involuntary." I am satisfied that the undisputed sworn statements of plaintiffs and others cited under the ordinance that they lack the present means to house themselves are sufficient to establish standing and to demonstrate a pattern of enforcement of the ordinance against homeless persons. We need not inquire into the "voluntariness" of all the acts or decisions that might have led to their current plight. As many of the briefs and expert submissions point out, the question whether the homeless, particularly the large proportion of homeless who are mentally ill or addicted to drugs or alcohol, are "voluntarily" living in the streets is complex. Even when services or welfare benefits are available, it may be beyond the resources of many homeless persons to avail themselves of such assistance. In any event, in light of the shortage of services and beds for the homeless, including the mentally ill and unaccompanied children, the question of "voluntariness" is almost academic. The undisputed fact is that Santa Ana has only 332 beds for a population of approximately 3,000 homeless. The vast majority of homeless in Santa Ana do not have the alternative of sleeping in a bed, off the streets. (See also Vernez et al., Review of California's Program for the Homeless Mentally Disabled (1988) pp. 1, 13, 15 [RAND study prepared for California Department of Mental Health, reporting, inter alia, that about 30 percent of Orange County homeless suffer from severe mental disorders]; Stats.1988, ch. 1517, § 1, p. 5382 [legislative finding that the extreme shortage of mental health services in California has led to redirection of long-term psychiatric patients "into a state of homelessness"]; Stats.1985, ch. 1286, § 1.5, p. 4415 [legislative finding that "large numbers of mentally disordered adults are homeless"]; State of Cal., Department of Youth Authority, Policy Review and Update: Statewide Needs Assessment of Youth Shelters and Youth Centers (1993) pp. 1, II.2-3 [indicating that Orange County has only 31 beds for unaccompanied children, although there are an estimated 3,000 to 4,000 unaccompanied children in the county]; United States Conference of Mayors, A Status Report on Hunger and Homelessness in America's Cities: 1993--A 26 City Survey (Dec.1993) p. 29 [children, including unaccompanied children or "runaways," account for an estimated 30 percent of the homeless population].)]

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In addition, plaintiffs address their as applied claims broadly to the unlawful implementation of the ordinance against all homeless persons. Plaintiffs thus have sufficient interest as citizens of Santa Ana, under our "public right/public duty" doctrine, to bring claims on behalf of other homeless persons who have, as a group, been targeted by the ordinance. (See Green v. Obledo (1981) 29 Cal.3d 126, 144-145, 172 Cal.Rptr. 206, 624 P.2d 256; Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439, 261 Cal.Rptr. 574, 777 P.2d 610.) The case "poses a question which is of broad public interest, is likely to recur, and should receive uniform resolution throughout the state." (Ramirez v. Brown (1973) 9 Cal.3d 199, 203, 107 Cal.Rptr. 137, 507 P.2d 1345.) Our courts have repeatedly applied the "public right/public duty" exception to the general rule that ordinarily a writ of mandate will issue only to persons who are "beneficially interested." (Code Civ.Proc., § 1086.) Thus in Green v. Obledo, supra, 29 Cal.3d 126, 172 Cal.Rptr. 206, 624 P.2d 256, recipients of welfare benefits petitioned for writ of mandate challenging the compliance of a regulation with the Social Security Act. We held that " ' "where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced...." ' " (Id. at p. 144, 172 Cal.Rptr. 206, 624 P.2d 256; accord, Common Cause v. Board of Supervisors, supra, 49 Cal.3d at p. 439, 261 Cal.Rptr. 574, 777 P.2d 610.) [9]

Furthermore, plaintiffs show a sufficient beneficial interest as citizens who seek to restrain the illegal expenditure or waste of city funds to implement an ordinance in an unconstitutional manner. (See Code Civ.Proc., § 526a; Blair v. Pitchess (1971) 5 Cal.3d 258, 267-269, 96 Cal.Rptr. 42, 486 P.2d 1242 [an action to restrain county or city officials from continuing to enforce provisions of an unconstitutional law presents a true case or controversy, regardless of whether the plaintiff and the defendant each have a special, personal interest in the outcome of the action]; Van Atta v. Scott (1980) 27 Cal.3d 424, 450, fn. 28, 166 Cal.Rptr. 149, 613 P.2d 210 [an action that "meets the criteria of section 526a satisfies case or controversy requirements"]; Ames v. City of Hermosa Beach (1971) 16 Cal.App.3d 146, 150, 93 Cal.Rptr. 786.) As we have emphasized, "it has never been the rule in this state that parties in [taxpayer suits] must have a personal interest in the litigation.... '[N]o showing of special damage to the particular taxpayer has

[9 (See also Parr, supra, 3 Cal.3d 861, 92 Cal.Rptr. 153, 159, 479 P.2d 353, 359 [plaintiff had standing to challenge an anti-"hippie" ordinance although she was herself manifestly not a "hippie" but a resident and merchant in the city]; Timmons v. McMahon (1991) 235 Cal.App.3d 512, 518, 286 Cal.Rptr. 620 [applying public interest exception in case involving eligibility rights for welfare benefits]; Driving Sch. Assn. of Cal. v. San Mateo Union High Sch. Dist. (1992) 11 Cal.App.4th 1513, 14 Cal.Rptr.2d 908 [applying public interest exception in case seeking to prevent school district from charging high school students tuition for a drivers' training class].)]

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been held necessary.' " (Blair v. Pitchess, supra, 5 Cal.3d at pp. 269-270, 96 Cal.Rptr. 42, 486 P.2d 1242.)

Because the City has used, and continues to use, taxpayer funds to cite and prosecute persons who store belongings or sleep in public places in violation of an ordinance challenged as unconstitutional, these citizen-plaintiffs have a sufficient interest to confer standing. Consequently, plaintiffs' as applied claims challenging the implementation of the ordinance against homeless persons present "a true case or controversy." (Blair v. Pitchess, supra, 5 Cal.3d at p. 269, 96 Cal.Rptr. 42, 486 P.2d 1242.)

The majority also conclude that an as applied claim challenging a criminal statute is justiciable only after "the circumstances of its application have been established by conviction or otherwise." (Maj. opn., ante, p. 410 of 40 Cal.Rptr.2d, p. 1153 of 892 P.2d). But in analogous cases we have not required conviction as a prerequisite to standing. Thus in Murgia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44, we concluded that the defendants, members of a particular union, could obtain discovery to determine whether various penal statutes were being discriminatorily enforced against them in violation of equal protection. The defendants had been charged with, but not yet convicted of, violations of the statutes. (Id. at p. 291, fn. 2, 124 Cal.Rptr. 204, 540 P.2d 44.) Indeed, we implicitly acknowledged that the defense of discriminatory enforcement did not reach the question of guilt or innocence:

"Because the particular defendant, unlike similarly situated individuals, suffers prosecution simply as the subject of invidious discrimination, such defendant is very much the direct victim of the discriminatory enforcement practice. Under these circumstances, discriminatory prosecution becomes a compelling ground for dismissal of the criminal charge, since prosecution would not have been pursued except for the discriminatory design of the prosecuting authorities." (Id. at p. 298, 124 Cal.Rptr. 204, 540 P.2d 44, fn. omitted.) [10]

The majority also plainly imply that an as applied challenge must necessarily be restricted to a case-by-case showing by each individual who is convicted under the ordinance that he or she was "truly homeless" and that the ordinance was improperly applied in each case. Such a requirement--which is tantamount to requiring an individual trial of a "necessity" defense for each person cited under the ordinance--is unwarranted. (See, e.g., Ramirez v. Brown, supra, 9 Cal.3d 199, 107 Cal.Rptr. 137, 507 P.2d 1345 [holding that challenged provisions were unconstitutional as applied to all ex-felons]; Van Atta v. Scott, supra, 27 Cal.3d at pp. 433, 452-453, 166 Cal.Rptr. 149, 613 P.2d 210 [holding that San Francisco's manner of applying statutes for pretrial release of criminal defendants violated due process].) It would needlessly subject large numbers of homeless persons to the criminal justice system for wholly innocuous conduct and overwhelm our already strained judicial resources, while effectively insulating the ordinance from meaningful review. [11]

[10 Similarly, under the Eighth Amendment it is not essential to have a formal adjudication of guilt to challenge a provision that makes status a criminal offense. In Joyce v. City & County of San Francisco (N.D.Cal.1994) 846 F.Supp. 843, 853, the district court expressly rejected the defendants' contention that a claim under the Eighth Amendment could be made only by a party convicted of a criminal offense. As Joyce emphasized, that proposition was refuted by the United States Supreme Court in Ingraham v. Wright (1977) 430 U.S. 651, 666-668, 97 S.Ct. 1401, 1409- 1411, 51 L.Ed.2d 711, which expressly provided that in addition to proscribing certain types of punishments to those convicted of crimes, the amendment "imposes substantive limits on what can be made criminal." Like Joyce, this case alleges discrimination on the basis of the status of homelessness--i.e., it challenges the ordinance under the substantive provisions of the Eighth Amendment. Moreover, "fines ... traditionally have been associated with the criminal process" and subjected to the limitations imposed by the Eighth Amendment. (Ingraham v. Wright, supra, 430 U.S. at p. 664, 97 S.Ct. at p. 1408.)]

[11 We have recognized that mandamus review is appropriate where, as here, important issues would be effectively removed from judicial review if standing is not conferred. (See Driving Sch. Assn. of Cal. v. San Mateo Union High Sch. Dist., supra, 11 Cal.App.4th at p. 1519, 14 Cal.Rptr.2d 908 ["High school students who take this brief 24-hour class are unlikely to have the financial resources or the economic interest necessary to maintain the protracted litigation necessary to test the School District's authority to charge tuition for the class."].) In this case, similarly, the targets of the ordinance are unlikely to have the financial resources to test the City's authority on a case-by-case basis. Because the City may cite, arrest, and detain homeless residents repeatedly without "actually convicting" them in a full-blown judicial proceeding, even under the majority's construction it would be justiciable as an issue "evading review."]

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Significantly, federal courts recently addressing similar challenges to "anti-camping" measures have consistently done so by examining ordinances as applied to the homeless in general, not on a case-by-case basis, and have not required conviction to establish standing. (See Pottinger v. City of Miami, supra, 810 F.Supp. at p. 1554 [challenging manner in which city "applies these laws to homeless individuals"]; Joyce v. City & County of San Francisco, supra, 846 F.Supp. at p. 846 [challenging ordinance "only insofar as it specifically penalizes certain 'life sustaining activities' engaged in by the homeless"]; Johnson v. City of Dallas (N.D.Tex.1994) 860 F.Supp. 344, 346 [addressing constitutionality of city ordinances "enacted, enforced, or both, allegedly to remove homeless persons from public view"].)

In sum, there is ample authority to conclude that these plaintiffs have standing and state justiciable claims, both facial and as applied. Most of the plaintiffs have been cited and fined for violations of the ordinance, and most are taxpayers. Moreover, because Santa Ana has effectively criminalized sleeping and storing personal property in any public places, plaintiffs and other homeless persons in Santa Ana--who have no legal alternative but to sleep and store personal property in public short of leaving the city altogether-- will necessarily be subject to future citation and/or arrest. The as applied claims are therefore properly before us.

II. Equal Protection In my view the ordinance violates equal protection under the rule of our decision in Parr, supra, 3 Cal.3d 861, 92 Cal.Rptr. 153, 479 P.2d 353, because it intentionally discriminates against homeless persons who have no alternative but to sleep and store their property in public areas of the City. [12]

[12 The majority incorrectly assert that plaintiffs did not pursue an equal protection theory. The writ petition expressly pleaded equal protection claims, including violations of the right to travel. Parr, supra, 3 Cal.3d 861, 92 Cal.Rptr. 153, 479 P.2d 353, a case devoted to equal protection analysis, was extensively briefed by the parties and amici curiae. Moreover, as discussed below, the right to travel is properly analyzed under an equal protection test.]

Opinion Continued

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