Aaron v. Municipal Court

• Decision Date: 24 August 1977
• Docket Number: JOSE-MILPITAS
• Citation: 140 Cal.Rptr. 849,73 Cal.App.3d 596
• Parties: James C. AARON et al., Plaintiffs and Appellants, v. The MUNICIPAL COURT OF the SANJUDICIAL DISTRICT, Defendant; The PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 39964.
• Court: California Court of Appeals Court of Appeals

Page 849

140 Cal.Rptr. 849

73 Cal.App.3d 596

James C. AARON et al., Plaintiffs and Appellants, v. The MUNICIPAL COURT OF the SAN JOSE-MILPITAS JUDICIAL DISTRICT, Defendant The PEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 39964.

Court of Appeal, First District, Division 1, California.

Aug. 24, 1977.

Robert Nicco, California State Public Defender, San Francisco, for appellants Aaron and Clark.

Bruce Lopucki, Deputy Public Defender, San Jose, for appellant Ponder.

Royce A. Fincher, Jr., Deputy City Atty., San Jose, for real party in interest and respondent.

SIMS, Acting Presiding Justice.

Petitioners, who sought a writ of prohibition to prohibit their prosecution for violation of a municipal ordinance which outlawed soliciting without a license, have appealed from the judgment (order signed and filed August 2, 1976) denying their petition. ¹ Their standing to challenge the constitutionality of the local ordinance is not challenged. ² Since the attack on the ordinance followed the overruling of the petitioners' demurrers to complaints filed against them, there is no factual setting concerning the application of the ordinance. Review is necessarily limited solely to the constitutionality of the provisions of the ordinance as they were adopted and in effect, not as they might actually be applied.

Petitioners contend that enforcement of the ordinance constitutes a denial of due process of law in that administrative discretion to grant or deny a permit is couched in unconstitionally vague terms. They also attack the ordinance because its exemptions deny them equal protection of the laws, and because it unconstitutionally requires, as a condition of the investigation for a permit, that the applicant waived his Fourth Amendment rights. (See Parrish v. Civil Service Commission (1967) 66 Cal.2d 260, 271, 57 Cal.Rptr. 623, 425 P.2d 223.) We find that the ordinance as enacted and as it existed at the time of its attempted enforcement against petitioners ³ was unconstitutionally vague on its face. The judgment must be reversed with directions to issue a peremptory writ as prayed for by petitioners. We, therefore, do not address the remaining issues raised by petitioners.

The ordinance challenged here required that anyone soliciting anything of value on the representation that it is for a charitable purpose must first obtain a permit: ' § 4320. Permit Required. No person by house to house canvass, or in residences, apartment houses or hotels, or business building, or in any public building or place, or on the public streets in the City, either personally or by telephone, or in any other manner, shall solicit memberships, advertising, money, property, or anything of value or financial assistance of any kind, or sell any article, or service, or tickets of admission to any performance, athletic event, card party, benefit, lecture, picnic, dance, ball, or other place of amusement or entertainment whatsoever, on representation, that such solicitation is for a charitable, patriotic or philanthropic purpose, or for the benefit of any person, unless such person shall first have obtained a permit therefor from the San Jose Public Solicitation Commission.' (San Jose Muni.Code, § 4320.) Sections 4321 to 4327 listed the information required in the application for such a permit, and section 4328 made the application public record. Section 4329 allowed waiver of the requirements in certain cases: ' § 4329. Waiver of Requirements. The San Jose Public Solicitation Commission may, in its discretion, waive any or all of the requirements of Sections 4321 to 4327 hereof, where the applicant is known to be a bona fide charitable organization of recognized integrity and long standing reputation as such.' Finally, section 4330 provided for investigation of the applicant: ' § 4330. Investigation. Issuance of Permit. Upon receipt of the application as provided for in Section 4321 to 4327, the San Jose Public Solicitation Commission shall make such investigation as may be necessary in regard thereto, and if satisfied that such purpose or object of such solicitation is worthy and not incompatible with public interest, and that the applicant and other persons to be engaged in such solicitation are of good character, and that the total costs and expenses of such solicitation are not disproportionate to the sum proposed to be collected thereby, and that a permit should be issued therefor, the Commission shall issue such permit for such period not to exceed one year as in the opinion of the Commission is proper; provided, that said permit may include the applicant, together with its agents and representatives named in said application. The San Jose Public Solicitation Commission shall issue or refuse in writing to issue said permit within ten days following the meeting of said Commission at which such application is considered.'

I

Preliminarily we examine the petitioners' contention that the ordinance encroaches on First Amendment rights and must be evaluated from the viewpoint of preventing any impingement on the rights of freedom of association, speech and religion. As pointed out in Ashton v. Kentucky (1966) 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469, 'Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer. We said in Cantwell v. Connecticut, supra ((1940) 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213), that such a law must be 'narrowly drawn to prevent the supposed evil,' 310 U.S. at 307, 60 S.Ct. 900, and that a conviction for an utterance 'based on a common law concept of the most general and undefined nature,' Id., at 308, 60 S.Ct. 900, could not stand.' (384 U.S. at pp. 200--201, 86 S.Ct. at pp. 1410--1411. See also NAACP v. Button (1963) 371 U.S. 415, 432 and 438, 83 S.Ct. 328, 9 L.Ed.2d 405 and Edwards v. South Carolina (1963) 372 U.S. 229, 237, 83 S.Ct. 680, 9 L.Ed.2d 697.)

Insofar as those soliciting for charitable, patriotic or philanthropic purposes or for personal benefit are entitled to the protection of the First Amendment, the following rules apply, 'In determining whether a statute regulating speech violates the First Amendment, we must weigh the state's interest in maintaining peace and order in the streets and other public places against the individual's right to freedom of speech and assembly. When this balance is struck, statutes requiring licenses for parades and demonstrations will not offend the Constitution if they regulate only the time, place, manner and duration of the marches and if they are fairly administered by officials within the range of narrowly limited discretion. On the other hand, any procedure which allows licensing officials wide or unbounded discretion in granting or denying permits is constitutionally infirm because it permits them to base their determination on the content of the ideas sought to be expressed.' (Dillon v. Municipal Court (1971) 4 Cal.3d 860, 869--870, 94 Cal.Rptr. 777, 783, 484 P.2d 945, 951. Accord Dulaney v. Municipal Court (1974) 11 Cal.3d 77, 84, 112 Cal.Rptr. 777, 520 P.2d 1.)

It is clear that the cloak of the First Amendment envelopes free speech, free assembly, and freedom to petition for redress of grievances. (Edwards v. South Carolina, supra, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697.) It embraces the right to associate for the advancement of beliefs and ideas, and to engage in litigation for political purposes. (Hynes v. Mayor of Oradell (1976) 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243; NAACP v. Button, supra, 371 U.S. 415, 429--431, 83 S.Ct. 328, 9 L.Ed.2d 405), and as well the right to address employees for the purpose of securing their membership in a union. (Staub v. City of Baxley (1958) 355 U.S. 313, 321--322, 78 S.Ct. 277, 2 L.Ed.2d 302; Thomas v. Collins (1945) 323 U.S. 516, 532--538, 65 S.Ct. 315, 89 L.Ed. 430; and In re Porterfield (1946) 28 Cal.2d 91, 104--110, 168 P.2d 706.) It expressly covers freedom of religion, and precludes censorship of the right to secure support for one's religion, by arbitrary control of solicitation. (Cantwell v. Connecticut, supra, 310 U.S. 296, 303--307, 60 S.Ct. 900, 84 L.Ed. 1213.)

Petitioners seek to bring themselves within the freedom of religion protection of Cantwell on the theory that although the ordinance is silent as to solicitation for religious purposes, the general reference to a charitable purpose embraces any religious purpose. (See Lundberg v. County of Alameda (1956) 46 Cal.2d 644, 649, 298 P.2d 1; Estate of Henderson (1941) 17 Cal.2d 853, 857, 112 P.2d 605; and La Societe Francaise v. Cal. Emp. Com. (1943) 56 Cal.App.2d 534, 542, 133 P.2d 47.) The case was presented in the municipal court in demurrer. Although there is a suggestion in the record that there was some stipulation in that court concerning the organization to which the petitioners belonged, it was never a part of the record in the superior court, and petitioners have so conceded. There is, therefore, no basis to find that this case itself involves religious freedom. We will not presume in this case that the ordinance itself would be given such an interpretation in other cases as to impinge on recognized religious liberties. Moreover, as noted below, Cantwell does recognize a limited right to control solicitation for religious purposes.

The right to solicit funds or property was not involved in Thomas v. Collins, supra, 323 U.S. at p. 535, 65 S.Ct. 315. In that respect the court stated: 'Once the speaker goes further, however, and engages in conduct which amounts to more than the right of free discussion comprehends, as when he undertakes the collection of funds or securing subscriptions, he enters a realm where a reasonable registration or identification requirement may be imposed. In that context such ...