Dulaney v. Municipal Court

Decision Date28 March 1974
Docket NumberS.F. 23006
Citation112 Cal.Rptr. 777,520 P.2d 1,11 Cal.3d 77
CourtCalifornia Supreme Court
Parties, 520 P.2d 1 Teresa A. DULANEY et al., Petitioners, v. The MUNICIPAL COURT FOR the SAN FRANCISCO JUDICIAL DISTRICT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The PEOPLE, Real Party in Interest.

Charles C. Marson, Joseph J. Remcho, San Francisco, Peter E. Sheehan, Berkeley and Larry Sleizer, Menlo Park, for petitioners.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Robert R. Granucci and Herbert F. Wilkinson, Deputy Attys. Gen., for respondent and for real party in interest.

SULLIVAN, Justice.

In this proceeding for a writ of prohibition, petitioners, Teresa Dulaney and Joel Shapiro, challenge the constitutionality of section 690 of the Municipal Code of the City and County of San Francisco (City) declaring it unlawful to affix any notice or poster to utility poles unless permission has been obtained from the person owning or controlling such poles and from the City's Department of Public Works (Department). 1 We have concluded that this section violates federal and state constitutional provisions guaranteeing the right of free speech since it operates as a prior restraint on the right of individuals to exercise a form of protected expression but contains no standards whatsoever to guide the City's Department in its decision to grant or deny permission under the section.

The material facts are brief and are not in dispute. On November 16, 1972, petitioners were arrested for posting on a utility pole--either a telephone pole or a City-owned light pole 2--a notice announcing an anti-war rally and march. It is not alleged that petitioners requested permission to post notices on utility poles from the owner of the poles and the Department. However, petitioners allege on information and belief, and it is not denied by the People, real party in interest herein, that the Department has, in the past, given permission to others to post notices or signs on utility poles under the authority of the ordinance in question.

Complaints were filed in respondent court charging petitioners separately with violating section 690 of the San Francisco Municipal Code which makes it unlawful for any person to post a notice on utility poles unless he has first obtained the permission of the person owning or controlling the poles and of the Department. Claiming that their conduct does 'not constitute a public offense' because the ordinance in question improperly infringed on their right of expression guaranteed by the United States Constitution (1st Amend.) and the California Constitution (art. I, § 9), petitioners demurred to the respective complaints. (Pen.Code, § 1004, subd. 4.) The demurrers were overruled. Petitioners then filed in the superior court a petition for a writ of prohibition seeking to restrain respondent court from further proceedings in the criminal actions brought against them. The petition was denied. Upon application to this court, we issued an alternative writ of prohibition and a stay of the proceedings below.

In their return to the alternative writ, the People allege in effect that this is not an appropriate case for extraordinary relief and that the provision in question is not unconstitutional on its face but is a proper exercise of the City's police power. Otherwise, they admit the allegations contained in the petition. 3

Preliminarily, we must determine whether this is a proper case for extraordinary relief. Where a criminal statute or ordinance sought to be enforced is alleged to be unconstitutional on its face, a petition for a writ of prohibition is an appropriate method of seeking relief. (Dillon v. Municipal Court, Supra, 4 Cal.3d 860, 866, fn. 6, 94 Cal.Rptr. 777, 484 P.2d 945; Burton v. Municipal Court (1968), 68 Cal.2d 684, 687, 68 Cal.Rptr. 721, 441 P.2d 281; Whitney v. Municipal Court (1962), 58 Cal.2d 907, 911, 27 Cal.Rptr. 16, 377 P.2d 80; Hunter v. Justice's Court (1950), 36 Cal.2d 315, 323, 223 P.2d 465; Rescue Army v. Municipal Court (1946), 28 Cal.2d 460, 462--463, 171 P.2d 8; Mandel v. Municipal Court, Supra, 276 Cal.App.2d 649, 655--656, 81 Cal.Rptr. 173; Chavez v. Municipal Court (1967), 256 Cal.App.2d 149, 151--152, 64 Cal.Rptr. 76; Moore v. Municipal Court (1959), 170 Cal.App.2d 548, 551--554, 339 P.2d 196; see Perrine v. Municipal Court (1971) 5 Cal.3d 656, 665, 97 Cal.Rptr. 320, 488 P.2d 648, cert. denied, 404 U.S. 1038, 92 S.Ct. 710, 30 L.Ed.2d 729; 5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, §§ 40, 58; Cal. Civil Writs (Cont.Ed. Bar 1970) § 10.53, p. 241.) 4

However, the People assert that a writ is inappropriate here because a foundational fact necessary for resolution of the constitutional issue is in dispute. (See Code Civ.Proc., §§ 1090, 1105.) No factual finding has been made, the People explain, that the City has actually issued permits for posting notices on utility poles under the authority of the provision in question and there is, therefore, no basis for concluding that the City has 'opened the forum' by making otherwise unavailable utility poles accessible for posting notices. However, unless this is an issue of fact 'affecting the substantial rights of the parties' (Code Civ.Proc., §§ 1094, 1105) we should proceed to consider the merits. (See Dillon v. Municipal Court, Supra, 4 Cal.3d 860, 865, 94 Cal.Rptr. 777, 484 P.2d 945; cf. In re Berry (1968), 68 Cal.2d 137, 141, fn. 2, 65 Cal.Rptr. 273, 436 P.2d 273, stating a similar rule on a petition for writ of habeas corpus.)

We reject the People's argument for two reasons. First, even assuming that utility poles need not be made available as a forum for exercising First Amendment rights, the ordinance on its face makes such poles accessible for posting notices where the consent of the owner and the Department is obtained. Contrary to the People's claim, the ordinance, therefore, has 'opened the forum.' (For examples of 'opening the forum,' see Marsh v. Alabama (1946), 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (privately owned sidewalks and streets); Wirta v. Alameda-Contra Costa Transit Dist. (1967), 68 Cal.2d 51, 54--55, 64 Cal.Rptr. 430, 434 P.2d 982 (motor coaches); Danskin v. San Diego Unified School Dist. (1946), 28 Cal.2d 536, 545--546, 171 P.2d 885 (school building).) Whether or not the City has actually permitted others to post notices on utility poles is not, therefore, an issue 'affecting the substantial rights of the parties.' (Code Civ.Proc., § 1094.) Second, even if it were necessary, as the People argue, to establish the foundational fact of 'opening of the forum' by previous issuance of permits under the ordinance, it appears that the People have admitted such 'opening of the forum' by failing to deny petitioners' allegations that the Department has previously issued permits. (See Dunn v. Municipal Court (1963), 220 Cal.App.2d 858, 865, fn. 5, 34 Cal.Rptr. 251.)

We turn to the merits. Petitioners allege that the ordinance in question is an invalid prior restraint on freedom of speech because it establishes a licensing scheme that is 'totally devoid of narrow, definite and objective standards.' 5 (Dillon v. Municipal Court, Supra, 4 Cal.3d at p. 866, 94 Cal.Rptr. at p. 780, 484 P.2d at p. 948, fn. omitted.) The attack is directed only to the validity of the ordinance on its face--not as applied in this case--because it attempts to restrict or regulate the posting of notices or other printed material on utility poles. 6

A threshold question which we must resolve is whether the ordinance in question attempts to regulate First Amendment expression. We note that by means of a licensing scheme the ordinance regulates the Posting of notices on utility poles but not their content. However, the First Amendment protects not only the content but also the dissemination of written material. (Martin v. City of Struthers (1943), 319 U.S. 141, 143, 63 S.Ct. 862, 87 L.Ed. 1313; Lovell v. Griffin (1938), 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949; Van Nuys Pub. Co. v. City of Thousand Oaks (1971), 5 Cal.3d 817, 821, 97 Cal.Rptr. 777, 489 P.2d 809.) The posting of written material is not unlike other forms of protected expression, such as picketing (see Police Department v. Mosley (1972), 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (decided on equal protection grounds); Cox v. Louisiana (1965), 379 U.S. 536, 542, 85 S.Ct. 453, 13 L.Ed.2d 471; Cox v. New Hampshire (1941), 312 U.S. 569, 575--576, 61 S.Ct. 762, 85 L.Ed. 1049); and the distribution or circulation of printed matter (Talley v. California (1960), 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559; Schneider v. State (1939), 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Lovell v. Griffin, Supra, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Van Nuys Pub. Co. v. City of Thousand Oaks, Supra, 5 Cal.3d 817, 97 Cal.Rptr. 777, 489 P.2d 809.) Accordingly, we are of the view that the posting of notices on utility poles is a form of expression coming within the protective umbrella of the First Amendment.

In Dillon v. Municipal Court, Supra, 4 Cal.3d 860, 94 Cal.Rptr. 777, 484 P.2d 945, involving a similar challenge to a city ordinance requiring permits for parades and demonstrations, we summarized the principles governing the constitutionality of restrictions on protected expression. We there observed: '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 (the exercise of First Amendment rights) will not offend the Constitution if they regulate only the time, place, manner and duration (of such expression) and if they are fairly administered by officials within the range of narrowly limited discretion. On the other hand,...

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