Hillman v. Britton

• Decision Date: 05 November 1980
• Court: California Court of Appeals Court of Appeals
• Parties: Donald HILLMAN et al., Plaintiffs and Appellants, v. H. E. BRITTON, as Police Chief, etc., et al., Defendants and Respondents. Civ. 4030.

Page 852

168 Cal.Rptr. 852

111 Cal.App.3d 810

Donald HILLMAN et al., Plaintiffs and Appellants, v. H. E. BRITTON, as Police Chief, etc., et al., Defendants and Respondents.

Civ. 4030.

Court of Appeal, Fifth District, California.

Nov. 5, 1980.

Barry A. Fisher & Robert C. Moest, Beverly Hills, Henry & Missirlian and James Vance Henry, Fresno, for plaintiffs and appellants

James A. McKelvey, City Atty. and Jeanne L. Winslow, Deputy City Atty., Fresno, for defendants and respondents.

OPINION

PIERSON, Associate Justice. ^*

This case presents an appeal from a "Ruling on Application for Preliminary Injunction" which denied appellants' request for a preliminary injunction against enforcement of Fresno Municipal Code section 6-701 et seq.

Appellant Donald Hillman is the president and minister of the Little Country Church, a charter of the Universal Life Church, Inc., a California nonprofit religious corporation.

Donald Hillman and his wife Grace sought to engage in charitable solicitations and solicitations to support their church and charitable work of their church. They pursued that endeavor without first having applied for or obtained a license to solicit pursuant to Fresno Municipal Code section 6-701 et seq. (hereinafter referred to as Fresno ordinance) governing charitable and religious solicitation. Their efforts to obtain monetary support for their intendments were interrupted by the threat of criminal action. The Fresno ordinance requires a license issued by the Fresno City controller in order to engage in most religious or charitable solicitations. Violators are subject to misdemeanor prosecution.

The Hillmans filed a complaint which embodied a civil rights suit to enjoin enforcement of the Fresno ordinance. They alleged the law is unconstitutional and requested a preliminary injunction preventing enforcement of the solicitation licensing law pending trial on the complaint. Following a hearing the request for preliminary injunction was denied.

In its ruling denying the preliminary injunction, the trial court noted that upon proper application the controller must issue a permit unless he finds the existence of one or more of ten listed "facts" justifying rejection of an application. The court stated that while some of those ten facts might not meet constitutionally acceptable standards, others in the list set constitutionally acceptable standards and held the statute valid on its face. A review of the decisions construing the constitutionality of similar licensing laws leads us to the unavoidable conclusion that the preliminary injunction should have been granted.

APPELLANTS HAVE STANDING TO ATTACK THE CONSTITUTIONALITY OF THE FRESNO SOLICITATION LICENSING LAW

Respondents contend that appellants have no standing to bring this action as they never applied for or were denied a license to solicit, nor were they under arrest for engaging in solicitation without a permit.

In Burton v. Municipal Court (1968) 68 Cal.2d 684, 68 Cal.Rptr. 721, 441 P.2d 281, the petitioners sought a writ of prohibition to restrain the court from proceeding with a trial in which they were charged with a violation of a municipal code prohibiting the exhibition of theater films to the public without a permit. The board charged with issuance of such permits (Board of Police Commissioners) contended petitioners lacked standing in the absence of a rejected application for a permit. In holding that such an antecedental procedure is not essential to challenge such a statute, the court stated:

"It is settled that a person has the standing to challenge a statute on the ground that it delegates overly broad licensing authority to an administrative officer whether or not his conduct could be proscribed by a properly drawn enactment and whether or not he had applied for a license. One who could have obtained a license for the asking may call into question the whole scheme of licensing when he is prosecuted for failure to procure it. Standing is recognized in such a situation because of the dangers inherent in tolerating, in the realm of the First Amendment, the existence of a penal statute susceptible of sweeping and improper application. (Freedman v. Maryland (1965) 380 U.S. 51, 56, 85 S.Ct. 734, 738-739, 13 L.Ed.2d 649, 653; Staub v. Baxley (1958) 355 U.S. 313, 319, 78 S.Ct. 277, 280-281, 2 L.Ed.2d 302, 309-310; Thornhill v. Alabama (1940) 310 U.S. 88, 97, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093, 1099-1100.)" (Id. at p. 688, 68 Cal.Rptr. 721, 441 P.2d 281; see also, Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575, 160 Cal.Rptr. 567.)

Aaron v. Municipal Court (1977) 73 Cal.App.3d 596, 140 Cal.Rptr. 849, presented a situation in which petitioners sought a writ of prohibition prohibiting prosecution for violation of a municipal ordinance which prohibited charitable solicitations without a permit. In noting that petitioners' standing to contest the constitutionality of the statute was unchallenged, the court remarked:

"A person faced with an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license, and he is not precluded from attacking its constitutionality because he has not applied for a permit. (Shuttlesworth v. Birmingham (1969) 394 U.S. 147, 151, and cases cited fn. 2, 89 S.Ct. 935, 938-939, 22 L.Ed.2d 162, 167; Freedman v. Maryland (1965) 380 U.S. 51, 55-56, 85 S.Ct. 734, 737-738, 13 L.Ed.2d 649, 652-653; Staub v. City of Baxley (1958) 355 U.S. 313, 318-319, 78 S.Ct. 277, 280-281, 2 L.Ed.2d 302, 308-309; and Burton v. Municipal Court (1968) 68 Cal.2d 684, 687-688, 68 Cal.Rptr 721, 441 P.2d 281.)" (Id. at p. 599, fn. 2, 140 Cal.Rptr. 849.) ¹

In People v. Fogelson (1978) 21 Cal.3d 158, 145 Cal.Rptr. 542, 577 P.2d 677, appellant, who belonged to the Hare Krishna faith, was convicted of soliciting contributions on public property (Los Angeles International Airport) without a permit. The city attorney contended appellant did not have standing to challenge the constitutionality of the ordinance because he had not applied for a permit as the ordinance required. The Supreme Court found no merit in the city's argument:

" 'It is ... settled that petitioners have standing to attack the constitutional validity of (an) ordinance which they are charged with having violated even though they have failed to allege that they attempted to comply with its permit requirement. (Dillon v. Municipal Court, supra, 4 Cal.3d 860, 866 fn. 6, 94 Cal.Rptr. 777, 484 P.2d 945, and cases collected therein; see also Burton v. Municipal Court, supra, 68 Cal.2d 684, 687-688, 68 Cal.Rptr. 721, 441 P.2d 281.) "Standing is recognized in such a situation because of the dangers inherent in tolerating, in the realm of the First Amendment, the existence of a penal statute susceptible of sweeping and improper application. (Citations.)" ...' " (Id. at pp. 162-163, fn. 3, 145 Cal.Rptr. 542, 577 P.2d 677.)

Threat of imminent criminal prosecution was claimed in Dombrowski v. Pfister (1965) 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. There plaintiffs sought declaratory relief and an injunction to restrain certain government officials from prosecuting or threatening to prosecute plaintiffs for alleged violations of the Louisiana Subversive Activities and Communist Control Law. Their complaint was dismissed in the district court. The United States Supreme Court reversed holding the act's language to be broad, vague and uncertain. The court noted as follows:

"Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression-of transcendent value to all society, and not merely to those exercising their rights-might be the loser. (Citation.) For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. (Citations.) We have fashioned this exception to the usual rules governing standing, see United States v. Raines, supra, because of the ' * * * danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.' (Citation.) If the rule were otherwise, the contours of regulation would have to be hammered out case by case-and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation. ..." (Id. at pp. 486-487, 85 S.Ct. at p. 1121.)

In Bradley v. Sparks (Cent.Dist.Cal. (Sept. 2, 1977) CV 77-3019 (unpub. opn.)), ² the Federal district court granted a preliminary injunction against enforcement of the Laguna Beach, California Municipal Code, chapter 5.20, which prohibited religious solicitations in public places without a permit. The six plaintiffs, members of Krishna Consciousness, never applied for a permit and were advised that to engage in solicitation would subject them to arrest and prosecution. Plaintiffs desisted and were never arrested. The court held that plaintiffs had standing whether or not their conduct could be proscribed by a properly drawn ordinance and whether or not they ever applied for a permit.

In the instant case, the threatened prosecution or arrest of appellants if they assert their First Amendment rights constitutes an adequate showing of irreparable injury. We find they have standing to request injunctive relief.

FIRST AMENDMENT PROTECTIONS ENCOMPASS CHARITABLE SOLICITATIONS

Several State and Federal decisions have well established the application of First Amendment protections to charitable solicitations.

In Hynes v. Mayor and Council of Borough of Oradell (1976) 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243, the United States Supreme Court held that a New Jersey municipal canvassing and...