Manning v. Municipal Court
| Decision Date | 16 June 1982 |
| Docket Number | OAKLAND-PIEDMONT |
| Citation | 183 Cal.Rptr. 458,132 Cal.App.3d 825 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Gail MANNING, Plaintiff and Appellant, v. MUNICIPAL COURT, ALAMEDA COUNTY,JUDICIAL DISTRICT, Defendant, PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 53203. |
Anne Flower Cumings, San Francisco, for plaintiff and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Martin S. Kaye, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for real party in interest and respondent.
Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union, Foundation of Northern California, Inc., San Francisco, for amici curiae.
Defendant, Gail Manning, was charged by a first amended complaint, filed in the municipal court, which alleged a violation of section 316 of the Penal Code in that she "did willfully and unlawfully keep a house used for the purpose of assignation or prostitution, and did let rooms, apartments, or tenements, knowing that it [sic] was to be used for the purpose of assignation or prostitution." 1 She demurred to the complaint, contending, inter alia, that section 316 was unconstitutional because it was overbroad and void for vagueness. The municipal court overruled the demurrer, and defendant then sought a peremptory writ of mandamus or prohibition from the superior court to compel the municipal court to sustain the demurrer. The superior court denied her such relief and now she has appealed from the order of denial. 2
Defendant claims that section 316 is so worded that its enforcement could infringe upon an individual's constitutional right to privacy. To the extent that the statute prohibits conduct described as an "assignation," we agree.
If a statute is worded in such a manner that its enforcement could infringe upon the exercise of a First Amendment right, then that statute must be held void for overbreadth even though the statute also prohibits conduct which is not protected by the First Amendment and which could properly be prohibited pursuant to a reasonable exercise of the police power. (Alford v. Municipal Court (1972) 26 Cal.App.3d 244, 247-248, 102 Cal.Rptr. 667.) In the case of In re Bell (1942) 19 Cal.2d 488, 496, 122 P.2d 22, the California Supreme Court observed that (To the same effect, see In re Porterfield (1946) 28 Cal.2d 91, 115, 168 P.2d 706; Rees v. City of Palm Springs (1961) 188 Cal.App.2d 339, 347, 10 Cal.Rptr. 386.)
A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application is in violation of the first essential of due process of law. (Connally v. General Const. Co. (1926) 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 370, 341 P.2d 310; Mandel v. Municipal Court (1969) 276 Cal.App.2d 649, 660, 81 Cal.Rptr. 173.)
Section 316 was enacted in 1872 and has been amended once, during the 1873-1874 session of the state Legislature. (Code Amend. 1873-1874, ch. 614, § 26, p. 430.) We must assume that, in those times, the word "assignation", as set forth in the statute, was generally understood to denote conduct involving the commercial exploitation of illicit sexual activities. However, we believe that the use of the word for such purpose, in today's world, would fall far short of its mark. The present definition of "assignation" is sufficiently uncertain as to make it unlikely that an average individual, desirous of avoiding prosecution under section 316, would have any clear idea of what conduct fell within the purview of that term.
Webster's Seventh New Collegiate Dictionary (1971), at pages 53, 953, defines "assignation" as "1: the act of assigning or the assignment made; esp.: ALLOTMENT 2: TRYST." The word "tryst" is defined as "1: an agreement (as between lovers) to meet 2: an appointed meeting or meeting place." Nothing in these definitions suggests conduct which is immoral, let alone illegal. Since the state has no legitimate interest in prohibiting even lewd and dissolute sexual conduct unless it occurs within the presence of individuals who might be offended by it (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256-257, 158 Cal.Rptr. 330, 599 P.2d 636), then it is obvious that it has even less interest in prohibiting a lover's tryst occurring within the privacy of an individual's apartment or hotel room.
We conclude that the word "assignation," as used in section 316, is too vague to give notice to a potential offender of the conduct to be avoided; also, such vagueness allows for the exercise by the police of unfettered discretion to determine for themselves what conduct shall be deemed to constitute an "assignation." (See Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 168-170, 92 S.Ct. 839, 846-847, 31 L.Ed.2d 110.)
The principle is well established that we should not pronounce a statute unconstitutional unless such result is necessary to the proper disposition of a cause. (Mandel v. Hodges (1976) 54 Cal.App.3d 596, 618-619, 127 Cal.Rptr. 244.) Even when such a result is indicated, an unconstitutional enactment may be upheld in part if it can be said that such part is complete in itself and would have been adopted by the Legislature had that body foreseen the partial invalidity...
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