Cox, In re

• Citation: 90 Cal.Rptr. 24,474 P.2d 992,3 Cal.3d 205
• Decision Date: 01 October 1970
• Docket Number: Cr. 13648
• Parties: , 474 P.2d 992 In re Theodore William COX on Habeas Corpus.
• Court: United States State Supreme Court (California)

Page 24

90 Cal.Rptr. 24

3 Cal.3d 205, 474 P.2d 992

In re Theodore William COX on Habeas Corpus.

Cr. 13648.

Supreme Court of California,

In Bank.

Oct. 1, 1970.

As Modified on Denial of Rehearing Oct. 28, 1970.

Stanley J. Friedman, Herzstein, Maier, Carey & Friedman and Paul N. Halvonik, San Francisco, for petitioner.

David Menary, Jr., City Atty., Richard T. Tarrant, Asst. City Atty., Douglas J. Maloney, County Counsel, and George J. Silvestri, Jr., Deputy County Counsel, for respondent.

TOBRINER, Justice.

Theodore William Cox petitions for a writ of habeas corpus. Petitioner was arrested at the Northgate Shopping Center in San Rafael and charged with violation of section 8.12.210 of the San Rafael Municipal Code for remaining upon 'business premises after being notified by the person in charge thereof to remove therefrom.'

The primary issue raised by petitioner is that the San Rafael ordinance does not bestow upon the shopping center an absolute power arbitrarily to eject him, a would-be customer, from its premises. Explaining that the ordinance incorporates the provisions of the Unruh Civil Rights Act, we hold, as a matter of law, that the act does not sanction any such arbitrary exclusion of a customer, although the center may, of course, establish reasonable regulations for its operation. Second, petitioner urges that the state law has preempted the subject matter of the San Rafael ordinance; we do not agree. Nor do we concur in petitioner's next contention that the ordinance, properly construed, fails because of its vagueness. Finally, petitioner submits that the center violated his rights under the First Amendment, but, although we set forth certain constitutional protections to which he is entitled, we cannot, in the absence of a finding of the facts, determine whether his particular conduct merited any such protection. Hence, we conclude that the writ must be denied, and the order to show cause discharged.

1. The facts

We set forth the substantial facts as disclosed by the allegations of the parties. ¹ In the afternoon of May 21, 1968, petitioner entered the Northgate Shopping Center in San Rafael, California, intending to make a purchase. Upon arrival he saw a friend standing on the sidewalk of the shopping center. Petitioner, on a Honda motorcycle belonging to his father, pulled up to the curb and proceeded to talk with this young man, who wore long hair and dressed in an unconventional manner.

Shortly after the beginning of the conversation, a security officer approached and ordered both youths to leave the premises. Informing the guard that he intended to make a purchase, petitioner went to park the motorcycle. After doing so, petitioner rejoined his friend and together they were about to undertake the purchase when the guard again ordered them to leave. A discussion ensued regarding the guard's legal authority to eject them without giving any reason for it. Others at the shopping center joined in the debate, which petitioner described as 'heated.' In the course of the discussion, petitioner did purchase a Coca Cola and sat on a communal bench provided by the shopping center for patrons of the soft drink concession. The police arrived and arrested petitioner and his friend.

Approximately 20 days after the above incident, the District Attorney of Marin County filed a complaint in the Municipal Court of the Central Judicial District of Marin County, charging petitioner with a 'misdemeanor, to-wit: violation of Section 8.12.210 ² of the San Rafael Municipal Code in that said Defendants did then and there remain upon private property and business premises after being notified by the person in charge thereof to remove therefrom.' Having been admitted to bail in the amount of $65, petitioner is in constructive custody awaiting trial on the above described charges. ³

2. The San Rafael trespass ordinance does not endow the shopping center with an absolute power arbitrarily to exclude a would-be customer from its premises.

This case presents conflicting interpretations of the ordinance: the shopping center claims the absolute power to exclude petitioner and any other person whom it does not wish to serve; petitioner maintains that the center cannot arbitrarily eject him from its premises. Since the ordinance interlocks with the Unruh Act, ⁴ Its proper interpretation involves not only the municipal legislation, and the comparatively narrow circle of persons in the locality which it affects, but the California enactment and the far broader statewide concentric circle of people that it involves. Thus the questions raised and briefed are surely important ones that we should now resolve for the guidance of the trial court in subsequent proceedings in this litigation. (See Brandt v. Superior Court (1967) 67 Cal.2d 437, 444, 62 Cal.Rptr. 429, 432 P.2d 31; Shively v. Stewart (1966) 65 Cal.2d 475, 481, 55 Cal.Rptr. 217, 421 P.2d 65.)

The ordinance ties into the Unruh Act by providing that it shall not be effective in an instance in which 'its application results in or is coupled with an act prohibited by the Unruh Civil Rights Act. * * *' ⁵ As we shall explain, that statute, although primarily invoked in pecent years to prohibit racial discrimination, does not limit itself to racial discrimination; both its history and its language disclose a clear and large design to interdict all arbitrary discrimination by a business enterprise. That the act specifies particular kinds of discrimination--color, race, religion, ancestry, and national origin--serves as illustrative, rather than restrictive, indicia of the type of conduct condemned. We shall likewise explain, however, that this broad interdiction of the act is not absolute; the center may establish reasonable regulations that are rationally related to the services performed and facilities provided.

The early common law decisions regarded certain enterprises as 'public' or 'common' callings, or, to use a later phrase, 'affected with a public interest.' These undertakings 'held themselves out' as providing a particular product or service to the community. (Arterburn, The Origin and First Test of Public Callings (1927) 75 U.Pa.L.Rev. 411, 418--428; Hamilton, Affectation with Public Interest (1930) 39 Yale L.J. 1089, 1098--1099; see Civil Rights Cases (1883) 109 U.S. 3, 26, 37--42, 3 S.Ct. 18, 27 L.Ed. 835 (dissenting opinion of Harlan, J.); Klim v. Jones (N.D.Cal.1970) 315 F.Supp. 109, at pp. 118, 119 (Levin, J.). The common law attached to these enterprises 'certain obligations, including--at various stages of doctrinal development--the duty to serve all customers on reasonable terms without discrimination and the duty to provide the kind of product or service reasonably to be expected from their economic role. Such occupations as blacksmith, food seller, veterinarian, and tailor, as well as those of common carrier and innkeeper were probably included in that category.' (Tobriner & Grodin, The Individual and the Public Service Enterprise in the New Industrial State (1967) 55 Cal.L.Rev. 1247, 1250 (fns. omitted); see J. Story, Commentaries on the Law of Bailments (9th ed. 1878) § 508 at p. 483; cf. Bell v. Maryland (1964) 378 U.S. 226, 286, 296--304, 84 S.Ct. 1814, 12 L.Ed.2d 822 (concurring opn. of Goldberg, J.); Lombard v. Louisiana (1962) 373 U.S. 267, 274, 275--276, 83 S.Ct. 1122, 10 L.Ed.2d 338 (concurring opn. of Douglas, J.); Greenberg v. Western Turf Ass'n (1905) 148 Cal. 126, 128, 82 P. 684; Greenberg v. Western Turf Ass'n (1903) 140 Cal. 357, 362--363, 73 P. 1050; Willis v. McMahan (1891) 89 Cal. 156, 26 P. 649; Turner v. North Beach & Mission R.R. (1868) 34 Cal. 594, 600; Pleasants v. North Beach & Mission R.R. (1868) 34 Cal. 586, 589.)

The California Legislature, in 1897, enacted these common law doctrines into the statutory predecessor of the present Unruh Civil Rights Act. (See Klein, The California Equal Rights Statutes in Practice (1958) 10 Stan.L.Rev. 253, 255--258.) The 1897 act provided: 'That all citizens within the jurisdiction of this State shall be entitled to the full and equal accommodations, advantages, facilities, privileges of inns, restaurants, hotels, eating-houses, barber-shops, bath-houses, theaters, skating-rinks, and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens.' (Stats.1897, ch. 108, p. 137, § 1.) A 1919 amendment broadened the act to encompass public conveyances. (Stats.1919, ch. 210, p. 309, § 1.) In 1923 the Legislature extended the act's coverage to 'places where ice cream or soft drinks of any kind are sold for consumption on the premises.' (Stats.1923, ch. 235, p. 485, § 1.)

Following these initial amendments which evidenced the coverage of the Civil Rights Act to include more places of public accommodation, two cases arose which required this court to determine whether the Civil Rights Act prohibited only discrimination on grounds of race, religion, and national origin or prohibited all arbitrary discrimination.

In Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734, 227 P.2d 449, we held that the Civil Rights Act barred the manager of a race track from expelling a patron who had acquired a reputation as a man of immoral character. We noted that 'Under our institutions the freedom to pursue the declared right (to public accommodations) on an equal basis is just as precious as many other freedoms and rights. The exercise of the power of its denial, being a restraint on a personal right, is circumscribed by the same constitutional safe-guards of equal protection and due process as are restraints under penal laws.' (36 Cal.2d at p. 739, 227 P.2d at p. 453.) Hence, the court concluded that a racecourse constituted 'a place of public entertainment,' which is 'so far affected with a public interest that the state might, in the interest of good order and fair dealing, require the...