Lane, In re, Cr. 12829

• Court: United States State Supreme Court (California)
• Writing for the Court: BURKE; TRAYNOR, C.J., McCOMB, PETERS, MOSK and SULLIVAN, JJ., and MOLINARI
• Citation: 457 P.2d 561,71 Cal.2d 872,79 Cal.Rptr. 729
• Parties: , 457 P.2d 561, 72 L.R.R.M. (BNA) 2286 In re Donald Robert LANE on Habeas Corpus.
• Docket Number: Cr. 12829
• Decision Date: 20 August 1969

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79 Cal.Rptr. 729 71 Cal.2d 872, 457 P.2d 561, 72 L.R.R.M. (BNA) 2286 In re Donald Robert LANE on Habeas Corpus. Cr. 12829. Supreme Court of California, In Bank. Aug. 20, 1969.

Duane B. Beeson, and Neyhart, Grodin & Beeson, San Francisco, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci, Derald E. Granberg and Timothy G. Laddish, Deputy Attys. Gen., for respondent.

BURKE, Justice.

In October 1967 petitioner was convicted in the Contra Costa County Municipal Court of two misdemeanors: violation of Concord Municipal Code sections 4147 ¹ [71 Cal.2d 873] (remaining on another's property after being notified by the owner to remove therefrom) and 4128 ² (distributing hand

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[457 P.2d 562] bills on premises of another without his consent). The Appellate Department of the Contra Costa Superior Court affirmed, and the Court of Appeal, First Appellate District, Division Two, denied habeas corpus without opinion. Petitioner then sought relief from this court, and we issued an order to show cause. Execution of judgment on conviction has been stayed pending our decision herein. As will appear, we have concluded that petitioner's activities were protected as an exercise of free speech.

Petitioner is an officer of a labor union which was involved in a labor dispute with one Lesher, publisher of certain newspapers. On June 17, 1967, petitioner appeared at the Calico Market, a large 'super-market-type' grocery store located on Monument Boulevard in Concord, for the purpose of distributing handbills urging customers not to patronize Calico Market because it advertised in newspapers published by Lesher, who was engaged in labor union disputes.

The Calico Market is an individual grocery store, owned and personally operated by one Stewart. It is not part of a chain and is not located in a shopping center. Stewart testified that he holds under lease the 24,000 square feet occupied by the store building 'and all of the (customer) parking area in front of the store for 150 feet extending to Monument Boulevard (a public street),' along which a public sidewalk runs. ³ A sidewalk some 10 feet wide runs along and adjacent to the front of the store; two doorways off of it serve as the customer entrances to the store building. The sidewalk is part of the privately owned property and is utilized only as a way between the parking lot and the store. Only the Calico Market is served by the parking area, which is accessible by two driveways from Monument Boulevard, and also by a direct route from the neighboring service station.

On the morning in question petitioner without the consent [71 Cal.2d 874] of owner Stewart stationed himself on the sidewalk just outside one of the doorway entrances to the store and commenced to distribute handbills. Petitioner did not block ingress or egress of customers, and did not speak to any customers except to thank them for taking a handbill. Stewart came out of the store and requested petitioner to leave the premises, pointed out that he could pass out the handbills on the public sidewalk adjacent to Monument Boulevard, and warned him that if he persisted on the store property Stewart would call the police. Petitioner stated he intended to pass out handbills all day long, Stewart then stepped between him and approaching customers, petitioner stepped around Stewart in order to reach the customers and in so doing pushed Stewart back in front of the customers, who were unable to enter the store, and Stewart 'grabbed' for the handbills, which fell to the ground. Stewart's son, who clerked in the store, thereupon emerged to assist his father and started to gather up the handbills. At this point one Lambert, a companion of petitioner, 'came running down the parking lot' and yelled 'That's all right, we've got the picture.' Next, the police arrived, explained to petitioner that his handbilling and remaining on the premises without Stewart's consent constituted misdemeanors, and when petitioner continued to do both, arrested him.

A week before this disturbance two persons passing out the same or similar handbills had been asked to leave the parking lot; one did so but the other continued his handbilling until the police arrived. Lambert, petitioner's associate, testified that because of this prior friction he accompanied petitioner to the market property

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[457 P.2d 563] to witness the disturbance he expected to result from further distribution at Calico, and to take photographs. ⁴ As an outgrowth of the disturbance which did occur battery charges were lodged against market owner Stewart. Similarly, petitioner was charged with and convicted of violation of the two Concord ordinances. (See ante, fns. 1, 2.)

It is established that peaceful picketing or handbilling 'carried on in a location open generally to the public is, absent other factors involving the purpose or manner of the picketing, protected by the First Amendment.' (Amalgamated Food Emp. U. Local 590 v. Logan Valley Plaza (1968), 391 U.S. 308, 313, 88 S.Ct. 1601, 1605, 20 L.Ed.2d 603[71 Cal.2d 875] (3), and cases there cited.) Accordingly, petitioner had a right unquestionably under the free speech guaranties to distribute his handbills on the public sidewalk between Monument Boulevard and the parking lot of Calico Market, and the only constitutional question remaining is whether he had a similarly protected...