City of Glendale v. George

• Decision Date: 27 March 1989
• Docket Number: No. B032383,B032383
• Citation: 256 Cal.Rptr. 742,208 Cal.App.3d 1394
• Court: California Court of Appeals
• Parties: CITY OF GLENDALE, Plaintiff and Respondent, v. Robert GEORGE, et al., Defendants and Appellants.

Page 742

256 Cal.Rptr. 742

208 Cal.App.3d 1394

CITY OF GLENDALE, Plaintiff and Respondent, v. Robert GEORGE, et al., Defendants and Appellants.

No. B032383.

Court of Appeal, Second District, Division 4, California.

March 27, 1989.

ACLU Foundation of Southern California, Carol A. Sobel, Joan W. Howarth and Paul L. Hoffman, Los Angeles, for defendants and appellants.

Frank R. Manzano, City Atty., and Scott H. Howard, Sr. Asst. City Atty., for plaintiff and respondent.

ARLEIGH M. WOODS, Presiding Justice.

This appeal is from an order denying the motion of Robert and Stella George (appellants) to vacate a consent judgment into which they had entered with the City of Glendale (the City).

We must first consider the procedural validity of this appeal. Ordinarily, a consent judgment cannot be attacked. (Atchison, T. & S.F. Ry. Co. v. Hildebrand (1965) 238 Cal.App.2d 859, 861, 48 Cal.Rptr. 339.) An exception exists, however, when the judgment is allegedly void on constitutional grounds, on the theory that such a judgment exceeds the court's jurisdiction and is subject to attack at any time. (County of Ventura v. Tillett (1982) 133 Cal.App.3d 105, 110-111, 183 Cal.Rptr. 741; John Siebel Associates v. Keele (1986) 188 Cal.App.3d 560, 564, fn. 3, 233 Cal.Rptr. 231.)

In the matter before us, appellants contend that the consent judgment violates their First Amendment rights of expression and association. The City argues the order denying appellants' motion to vacate the judgment is nonappealable notwithstanding the alleged constitutional exception, because appellants waived their First Amendment rights by consenting to the judgment.

"A waiver of First Amendment rights may only be made by a 'clear and compelling' relinquishment of them. Curtis Publishing Co. v. Butts, 388 U.S. 130, 145, 87 S.Ct. 1975, 1986, 18 L.Ed.2d 1094 (1967); ..." (National Polymer Products v. Borg-Warner Corp. (6th Cir.1981) 641 F.2d 418, 423.) "Moreover, it is well established that courts closely scrutinize waivers of constitutional rights, and 'indulge every reasonable presumption against a waiver.' [Citations.]" (Sambo's Restaurants, Inc. v. City of Ann Arbor (6th Cir.1981) 663 F.2d 686, 690, quoting Aetna Ins. Co. v. Kennedy (1937) 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177.)

Bearing these standards in mind we conclude that appellants did not waive their First Amendment rights by entering into the consent judgment. The relinquishment of a right necessarily implies knowledge of the right being relinquished. (Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 143, 87 S.Ct. 1975, 1985, 18 L.Ed.2d 1094 ["an effective waiver must ... be one of a 'known right or privilege.' "].) The record before us fails to disclose a clear understanding by appellants of the rights that they purportedly waived by entering into the consent judgment. To the extent that the record reveals awareness by appellants that their rights would be curtailed by the proposed judgment, the record also discloses that it was precisely this awareness that led them to resist the agreement. On this record, and indulging the presumption against waiver of fundamental rights, we do not find a clear and compelling relinquishment by appellants of their First Amendment rights. ¹ Accordingly, appellants were free to move the trial court to vacate the consent judgment on constitutional grounds and the order denying their motion is appealable.

The facts giving rise to this litigation are that appellants are tenants at a private residence located within the City. ² On September 3, 1987, the City filed a complaint to abate a public nuisance at appellants' residence, seeking injunctive relief. The City alleged that appellants maintained the residence as a "Santa's Village," which featured a "myriad of lights, displays, rooftop snow, and other items" whose purpose was to attract the public to the residence. The City alleged further that this use of appellants' property was inconsistent with the residential nature of their neighborhood and generated such traffic, noise, noxious fumes and odors, debris and "invasion of light[s]" as to constitute a public nuisance.

After some preliminary procedural skirmishing, appellants and the City entered into a consent judgment and permanent injunction. The relevant provisions of the judgment are set out more fully in the text of this opinion, but may be summarized as follows: restrictions on the time period during which appellants can display Christmas and other ornamental lights; a prohibition on further ornamentation of their residence; a ban on acceptance of donations or other payments at their residence; a qualified prohibition against members of the public entering or remaining on the premises; a ban on the distribution of any literature advertising the "Santa's Village" aspect of appellants' residence, as well as a ban on any other statements, "public or private," characterizing their residence as the residence of Santa Claus; a partial ban on ornamentation of the garage; and restrictions on the volume and time period during which music may be broadcast out of doors.

The consent judgment was filed on November 18, 1987. Within a matter of weeks, on December 3, 1987, appellants moved to set aside and vacate the judgment. They maintained that the judgment violated First Amendment rights of expression and association. The court below rejected appellants' various constitutional attacks on the judgment and denied their motion. This appeal followed. We affirm in part and reverse in part.

I

Appellants challenge as excessive three provisions of the consent judgment, paragraphs 3(a), 3(b), and 3(f), which restrict further decoration of their residence and the period of time during which certain decorations can be displayed. ³

The challenged restrictions are "an indirect or incidental regulation of speech ... resulting from pursuit of governmental goals unrelated to freedom of expression [citations]." (Times Mirror Co. v. City of Los Angeles (1987) 192 Cal.App.3d 170, 179, 237 Cal.Rptr. 346.) It has long been held that such a content-neutral restriction is justified "if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (United States v. O'Brien (1968) 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672; People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1977) 75 Cal.App.3d 523, 530, 142 Cal.Rptr. 338.)

Appellants challenge the restrictions on the grounds that they exceed the necessities of the case. We first examine the relevant governmental interests so as to provide a context within which to view their claim.

In Kovacs v. Cooper (1949) 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, the United States Supreme Court upheld a municipal ordinance which banned sound trucks from the streets of Trenton, New Jersey, rejecting a First Amendment challenge to the constitutionality of that ordinance. In its analysis of the competing interests involved, the court stated: "The preferred position of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself." (Id., at p. 88, 69 S.Ct., at p. 454; fn. omitted.) ⁴ These competing interests are present in the case before us, pitting an individual's free speech rights against a municipal government's power to regulate and abate a nuisance, "one of the basic functions of the police power." (Garcia v. Gray (10th Cir.1974) 507 F.2d 539, 544.) We acknowledge the primacy that freedom of speech occupies in our system of liberties. "Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom." (Palko v. Connecticut (1937) 302 U.S. 319, 327, 58 S.Ct. 149, 152, 82 L.Ed. 288.) Yet we also recognize "that the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest. [Citation.]" (City Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772.)

More recently, in Frisby v. Schultz (1988) 487 U.S. 474, 108 S.Ct. 2495, 2502, 101 L.Ed.2d 420, the United States Supreme Court affirmed the state's compelling interest in preserving the privacy and tranquility of residential neighborhoods in a decision which upheld a municipal ban on residential picketing. " 'The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.' (Carey v. Brown [1980] 447 U.S. [455,] 471, 100 S.Ct., [2286] at 2296 [65 L.Ed.2d 263]." (Frisby v. Schultz, supra, 487 U.S. at p. ----, 108 S.Ct. at p. 2502.)

There is no dispute that the florid ornamentation of appellants' house attracts, in Mr. George's words, "thousands of people" into his neighborhood. Indeed, attracting kindred spirits appears to be one of the purposes for appellants' activity. Certainly, appellants' decoration of their house is "[e]xpression ... symbolized by conduct" (Clark v. Community for Creative Non-Violence, supra, 468 U.S. at p. 293, 104 S.Ct. at 3069), and falls within the First Amendment's ambit.

As we have observed, however, "the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired. [Citations.]" (Heffron v. Int'l Soc. for Krishna Consc. (1981) 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 And where the First Amendment activity impinges upon the peaceful enjoyment by others of their homes in a residential neighborhood, the state may impose reasonable...