Braxton v. Municipal Court

• Decision Date: 04 October 1973
• Docket Number: S.F. 22896
• Court: California Supreme Court
• Parties: , 514 P.2d 697 Johnnie BRAXTON et al., Plaintiffs and Appellants, v. The MUNICIPAL COURT FOR the SAN FRANCISCO JUDICIAL DISTRICT of the CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent; The PEOPLE, Real Party in Interest and Respondent.

Page 897

109 Cal.Rptr. 897

10 Cal.3d 138, 514 P.2d 697

Johnnie BRAXTON et al., Plaintiffs and Appellants, v. The MUNICIPAL COURT FOR the SAN FRANCISCO JUDICIAL DISTRICT of the CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent The PEOPLE, Real Party in Interest and Respondent.

S.F. 22896.

Supreme Court of California In Bank.

Oct. 4, 1973.

Ronald Yank, San Francisco, John Murcko, Oakland, William Pinkus, Mill Valley, and Stuart Cutler, Los Angeles, for plaintiffs and appellants.

Paul N. Halvonik and Charles C. Marson, San Francisco, as amici curiae on behalf of plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E James, Asst. Atty. Gen., W. Eric Collins, Robert R. Granucci and Sanford Svetcov, Deputy Attys. Gen., for defendant and respondent and for real party in interest and respondent.

TOBRINER, Justice.

We consider here the constitutionality and proper construction of Penal Code section 626.4 ¹ Section 626.4 authorizes the chief administrative officer of a state college or university, or a person designated by him, to issue an order summarily barring any person from a campus upon 'reasonable cause to believe that such person has wilfully disrupted the orderly operation of such campus' (§ 626.4, subd. (a)). The statute also provides that a person who willfully and knowingly enters or remains on campus following such an order commits a misdemeanor (§ 626.4, subd. (d)).

Asserting that section 626.4 on its face suffers from the defects of First Amendment overbreadth, unconstitutional vagueness, and the lack of procedural due process, petitioners (appellants here) sought a writ of prohibition to prevent their prosecution under the statute. Although a broad construction would infest section 626.4 with many of the asserted constitutional infirmities, we believe that a narrower interpretation will both effectuate the legislative purpose of the statute and confine it within constitutional parameters.

As we shall explain, the purpose of the legislation is to provide a swift remedy, by means of exclusion from the campus, of those students ² who commit overt acts of violence or otherwise engage in illegal conduct which disrupts 'the orderly operation of such campus.' This remedy affords an alternative, supplementary, and often less onerous procedure than criminal prosecution. As the Select Committee on Campus Disturbances, which originated the enactment, stated, the statute places in the officers of state colleges and universities the 'authority to protect educational institutions from individuals who have engaged in illegal campus disturbances and who return with the intention of illegally disrupting the campus.'

We point out, however, that the statute, if literally applied, would succumb to constitutional attack both bacause of First Amendment overbreadth and vagueness. A literal construction of the terms of the statute--'willfully disrupted the orderly operation of (the) campus'--would violate constitutional mandates in that such vague language would include many forms of constitutionally protected expression and risk a chilling of free speech. Obviously the very sound of a voice can 'disrupt' the silence, and the content of a speech can 'disrupt' the equanimity of an audience.

To confine the statute within constitutional limits and to avoid the penalization of free speech, we interpret the words 'willfully disrupted' to apply in a limited situation consistent with the legislative purpose. In authorizing temporary banishment, the Legislature, we believe, sought to draw a line between (1) physically disruptive conduct, otherwise proscribed by statute, which in an emergency situation 'constitute(s) a substantial and material threat to the orderly operation of the campus' (§ 626.4, subd. (c)), and (2) the lawful exercise of free speech and other First Amendment liberties. We think the Legislature distinguished, in substance, between lawful peaceful persuasion and unlawful physical coercion.

We recognize, likewise, that the statute must be construed so as not to violate the precepts of procedural due process; hence we interpret section 626.4 to require notice and a hearing on alleged misconduct before the issuance of any exclusion order unless the campus administrator reasonably finds that the situation is such an exigent one that the continued presence on the campus of the person from whom consent to remain is withdrawn constitutes a substantial and material threat of significant injury to persons or property. (§ 626.4 subd. (c).) Even when an exclusion order issues without a hearing, a post-exclusion hearing must be held as soon as reasonably possible not later than seven days following a request by the person excluded. Finally we hold that before any person can be convicted under section 626.4, the state must prove beyond a reasonable doubt not only that the person violated an exclusion order, but also that the order rested upon an actual disruption by unlawful conduct.

The nature of the legislation here construed can be understood only in light of the facts that gave rise to this case. This litigation emanates from student unrest at San Francisco State College in the fall of 1970. On November 16, petitioners allegedly demonstrated against the publication of articles, which they characterized as 'racist and chauvinistic,' that appeared in the campus newspaper. An employee of the college then informed petitioners that consent to remain on campus had been withdrawn 'due to (their) previous wilful disruption of the order of the campus.' Subsequently petitioners were arrested and charged with violating section 626.4 by wilfully entering and remaining upon the campus after receiving notice that consent to remain had been withdrawn. Thereafter the San Francisco Municipal Court overruled petitioners' demurrer challenging the constitutionality of section 626.4 on its face and the San Francisco Superior Court denied a writ of prohibition; from that denial petitioners appeal.

Because, as we have stated, a broad reading of section 626.4 yields constitutionally impermissible applications, petitioners urge that the statute be declared void on its face. In answer the Attorney General invokes the legislative history of section 626.4, arguing that a reasonable construction can bring the statute within constitutional limitations. In adopting the Attorney General's suggestion, we follow the well-settled principle that if "the terms of a statute are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution the statute will be given that meaning, rather than another in conflict with the Constitution. (Citations omitted.)' (San Francisco Unified School Dist. V. Johnson (1971) 3 Cal.3d 937, 948, 92 Cal.Rptr. 309, 315, 479 P.2d 669, 675.) We have in the past invoked this principle to render restrictive interpretations of enactments in order to uphold their constitutionality. (E.g., In re Cox (1970) 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992; In re Kay (1970) 1 Cal.3d 930, 83 Cal.Rptr. 686, 464 P.2d 142; In re Bushman (1970) 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727; Morrison v. Board of Education (1969) 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375.)

We discuss, first, the broad constitutional principles that compel the interpretation we have set forth above.

I. The doctrine of First Amendment overbreadths compels our interrpetation of section 626.4 to exclude punishment for the content of speech, unless it constitutes an incitement to violence, or punishment for conduct entwined with speech, unless such conduct is physically incompatible with the peaceful functioning of the campus.

Without a narrowing construction, section 626.4 would suffer First Amendment overbreadth. For example, reasoned appeals for a student strike to protest the escalation of a war, or the firing of the football coach, might 'disrupt' the 'orderly operation' of a campus; so, too, might calls for the dismissal of the college president or for a cafeteria boycott to protest employment policies or the use of non-union products. Yet neither the 'content' of speech nor freedom of association can be restricted merely because such expression or association disrupts the tranquility of a campus or offends the tastes of school administrators or the public. Protest may disrupt the placidity of the vacant mind just as a stone dropped in a still pool may disturb the tranquility of the surface waters, but the courts have never held that such 'disruption' falls outside the boundaries of the First Amendment.

In the landmark case of Tinker v. Des Moines School District (1969) 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, the United States Supreme Court upheld the right of even a high school student attending class to wear an armband as a silent witness of his opposition to the Vietnam War. The court specifically rejected the contention that such armbands might arouse the ire of pro-war students or divert attention from regular classroom activities; =undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument of cause a disturbance. But our Constitution says we must take this risk, . . .' (Id. at p. 508, 89 S.Ct. at p. 737.)

The Tinker court merely applied in the high school context a principle long recognized in constitutional adjudication. '(A) function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.' (Terminiello v. Chicago (1949) 337 U.S. 1,...