32 Cal.App.4th 941, G014257, Tobe v. City of Santa Ana

Docket Nº:G014257, G014536.
Citation:32 Cal.App.4th 941, 27 Cal.App.4th 1209, 27 Cal.Rptr.2d 386
Opinion Judge:CROSBY, Associate Justice.
Party Name: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 ORANGE COUNTY JUDICIAL DISTRICT OF ORANGE COUNTY, Respondent; The PEOPLE, Real Party in Interest.
Attorney:Robert Cohen, Crystal Sims, William Wise, Harry Simon, Santa Ana, Kim Savage, Gill Deford, Los Angeles, Lloyd Charton, Tustin, Ivette Pena, San Francisco, Richard Rothschild, Santa Monica, John Huerta, Robin Toma, Los Angeles, Cathy Jensen, Anaheim, Paul Hoffman, Los Angeles, and Christopher Mear...
Judge Panel:Moore, Acting P.J., filed concurring and dissenting opinion. SONENSHINE, J., concurs. MOORE, Acting Presiding Justice, concurring and dissenting:
Case Date:February 02, 1994
Court:California Court of Appeals
 
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Page 941

32 Cal.App.4th 941

27 Cal.App.4th 1209, 27 Cal.Rptr.2d 386

Archie TOBE et al., Plaintiffs and Appellants,

v.

CITY OF SANTA ANA et al., Defendants and Respondents. 10

Dawn ZUCKERNICK et al., Petitioners,

v.

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

The PEOPLE, Real Party in Interest.

G014257, G014536.

California Court of Appeals, Fourth District, Third Division.

February 2, 1994

Review Granted May 12, 1994.

Review Granted Previously published at: 27 Cal.App.4th 1209, 22 Cal.App.4th 228

Opinion on pages 941-958 omitted.

REVIEW GRANTED.

COUNSEL

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[Copyrighted Material Omitted]

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Robert Cohen, Crystal Sims, William Wise, Harry Simon, Santa Ana, Kim Savage, Gill Deford, Los Angeles, Lloyd Charton, Tustin, Ivette Pena, San Francisco, Richard Rothschild, Santa Monica, John Huerta, Robin Toma, Los Angeles, Cathy Jensen, Anaheim, Paul Hoffman, Los Angeles, and Christopher Mears, Irvine, for plaintiffs and appellants.

[27 Cal.Rptr.2d 387] Edward J. Cooper, City Atty. and Robert J. Wheeler, Asst. City Atty., for defendants and respondents.

Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Kevin J. Phillips, Deputy Public Defenders, for petitioners.

O'Melveny & Myers, Phillip R. Kaplan, Brett J. Williamson, John C. Hueston, and Linda A. Bagley, Newport Beach, amici curiae on behalf of petitioners.

No appearance by respondent Orange County Mun. Court, Cent. Judicial Dist.

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

OPINION

CROSBY, Associate Justice.

This appeal arises from a superior court judgment on a petition for writ of mandate in which petitioners, three homeless residents of the City of Santa Ana, challenged on constitutional grounds a municipal ordinance adopted in 1992 and euphemistically yclept the " camping ordinance." (Santa Ana Mun.Code, ch. 10, art. VIII, § 10-400 et seq. (see fn. 3).) We consolidated the appeal with a writ petition from a number of defendants charged in the municipal court with violating the ordinance.1

As will appear, the camping ordinance is constitutionally repugnant on three different grounds. Accordingly, we reverse the judgment of the superior court insofar as it rejected the petition and direct that court to issue a

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writ restraining enforcement of the ordinance in its entirety and issue our own writ directing the municipal court to sustain demurrers in the pending prosecutions to counts alleged under the ordinance.

I

It is important to note at the outset that all the evidence in the superior court was presented by petitioners without legal objection or factual challenge from the city; indeed, much of it was from Santa Ana's own files. It may be generally grouped in three categories: (1) Declarations by the Executive Director of the Orange County Rescue Mission (located in Santa Ana) concerning the operation of area shelters; an expert on the dynamics of homelessness; and ten homeless persons, who both amplified their plights and provided insight into Santa Ana's enforcement practices under the camping ordinance; (2) a series of municipal memoranda chronicling Santa Ana's crusade against the homeless; and (3) transcripts and records from Santa Ana's earlier litigation efforts to expel the homeless. The proper analysis of the several constitutional issues requires a somewhat lengthy recitation of the evidence.

The housing element of the city's own 1989 general plan noted, " The average daily count of homeless persons in Santa Ana is estimated at approximately 3,000 persons." There was shelter for but 332 of them.

The municipal memoranda can only be characterized as astonishing. The first in evidence, titled " VAGRANTS," is dated June 16, 1988. It was authored by the city's Executive Director of the Recreation and Community Services Agency, Allen E. Doby, and sent to Park Superintendent Garry Ott. The memo stated, " This is a follow-up to a meeting with Jan Perkins today regarding the vagrant problem within the City of Santa Ana. A task force has been formed in an effort to deal with the vagrants. City Council has developed a policy that the vagrants are no longer welcome in the City of Santa Ana. [¶ ] The task force will comprise staff from Recreation and Parks, the Police Department, [27 Cal.Rptr.2d 388] and the Public Works Agency. In essence, the mission of this program will be to move all vagrants and their paraphernalia out of Santa Ana by continually removing them from the places that they are frequenting in the City, such as Civic Center, Center Park, the mission, the Hospitality House on the east side of town, and other City facilities which offer refuge to them. [¶ ] There will be a task force meeting for staff and

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the Police Department on Monday, time to be announced. [¶ ] We are submitting a proposal to Jan Perkins for additional funding to assist us in this effort. It will probably be a six-month effort with all agencies cooperating to the fullest extent." (Italics added.)

In a June 20, 1988 memorandum to Santa Ana Deputy City Manager Jan Perkins (" Subject: Vagrancy Task Force Update"), Doby described a meeting with two police lieutenants. The plan that emerged contained six points: (1) coordination between the two agencies; (2) primary enforcement at the Civic Center; Salvation Army; Hospitality House; and Center, Santa Anita, Birch, and Flower Street Parks; (3) concentrated enforcement against the " vagrants," beginning July 8-13; (4) posting of closing times for parks (9 or 9:30 p.m.); (5) coordination " to get rid of sleeping bags and accessories that are found in the parks" ; and (6) combined effort " to confiscate abandoned shopping carts around the Civic Center area."

Doby's memo went on to make the usual bureaucratic plea for an increase in budget and staff to carry out the plan. It concluded in part, " This proposed budget is the minimum necessary to meet the City's objective of cleaning up its neighborhoods and forcing out the vagrant population. " (Italics added.)

On June 17, 1988, Perkins sent a memorandum to the vagrancy task force outlining " a preliminary plan of action for dealing with the problems resulting from the vagrants loitering in the neighborhoods surrounding the Orange County Rescue Mission and the Salvation Army." Among the elements of the plan were the following (with timing of their implementation in parentheses): " Develop ordinance ... to monitor activities of free food providers in residential neighborhoods" (July 11); " Contact food providers and explain their negative impact" (June 13); " Strictly enforce" closing time at Center Park (immediate); " Turn on sprinklers in Center Park frequently to recover the grass" (immediate); " Increase pick-up of sleeping bags on weekends and during the week" (July 5); and " Strictly enforce Code Enforcement violations by businesses and social service agencies in the area of Center Park" (June 20).

Per the plan, the confiscation and destruction of personal property of the impoverished commenced; but these actions were quickly assailed in court. In April 1990, the city, without admitting liability, settled with attorneys provided to represent the homeless by the ACLU Foundation of Southern California, the Legal Aid Society of Orange County, and the Western Center on Law and Poverty. It agreed to a storage and retrieval policy for property confiscated in the future.

The city had just begun to fight, however. On August 15, 1990, Santa Ana police avenged the legal setback by descending on the homeless in the Civic

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Center. Sergeant Kevin Brown told of the operation in a memorandum to Chief Paul Walters. After listing crimes from rape to blocking " various passageways" allegedly committed in the Civic Center in the past and citing " health concerns," Brown reported as follows: " Eddie West Field [an open-air football stadium adjacent to the Civic Center] was used as the command post because it supplied a secured area where we could house multiple arrestees. In addition, it also allowed access to restroom facilities and water for the persons arrested. Four Police Service Officers were assigned to the command post to process all arrestees. This included photographing, fingerprinting, documentation and running record and warrant checks. Two officers were also assigned to the command post for care and custody of the arrestees. Five two-man observer teams were assigned throughout the plaza area looking for criminal activity. Each of the five two-man teams was completely concealed and was able to observe the violations from a safe and secure location. Five two-man arrest teams were called into the plaza area by the observers and the arrest teams took the violators into custody. [27 Cal.Rptr.2d 389] The violators were then transported to the command post at Eddie West Field where they were processed." There were 28 arrests for littering, 2 for drinking in public, 7 for urinating in public, 18 for jaywalking, 2 for destroying vegetation, 2 for riding bicycles on a sidewalk, 1 for glue sniffing, 1 for removing trash from a bin, and 2 for an obscure violation of the city's fire code.

The harassment sweep turned up 19 undocumented aliens, 7 persons with outstanding warrants, and 2 who gave false names. Twenty-seven of the arrestees had previous arrests for serious offenses. How many were convicted, if any, the memo does not say. Subtraction reveals that 36...

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