Perrine v. Municipal Court

• Court: United States State Supreme Court (California)
• Writing for the Court: WRIGHT; BURKE; McCOMB
• Citation: 488 P.2d 648,5 Cal.3d 656,97 Cal.Rptr. 320
• Parties: , 488 P.2d 648 James PERRINE, Petitioner, v. The MUNICIPAL COURT FOR the EAST LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 29852. In Bank
• Decision Date: 03 September 1971

Page 320

97 Cal.Rptr. 320 5 Cal.3d 656, 488 P.2d 648 James PERRINE, Petitioner,
v.
The MUNICIPAL COURT FOR the EAST LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Respondent;
The PEOPLE, Real Party in Interest. L.A. 29852. Supreme Court of California, In Bank. Sept. 3, 1971.

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[488 P.2d 649] [5 Cal.3d 658] Roger Jon Diamond, Pacific Palisades, for petitioner.

John D. Maharg, County Counsel, and Edward H. Gaylord, Asst. County Counsel, for respondent.

No appearance for real party in interest.

[5 Cal.3d 659] WRIGHT, Chief Justice.

Petitioner seeks a writ of prohibition to restrain respondent court from taking further proceedings in criminal actions charging him with violating Los Angeles County Ordinance 5860, section 321 ¹ which prohibits the operation of a bookstore without first securing a license from the Los Angeles County Public Welfare Commission. Since the ordinance sets no adequate standards for issuing licenses we conclude that it constitutes an invalid prior restraint on the exercise of freedoms guaranteed by the First Amendment and is therefore unconstitutional on its face. We also hold that it is constitutionally impermissible to deny an applicant a license to operate a bookstore solely upon the ground that he has suffered a prior criminal conviction.

The facts are not in dispute. For several years petitioner has been engaged in the business of selling books and magazines in Los Angeles County at various leased locations. On November 28, 1969, Los Angeles County adopted an ordinance requiring that every person operating a bookstore procure a license and pay a license fee of $25. (Los Angeles County Ordinance 5860, §§ 321, 322.) ² It provides that operating a bookstore without a license is a misdemeanor and that each day's unlicensed operation constitutes a separate offense. (Los Angeles County Ordinance 5860, §§ 7, 13.) ³ Sections 329.2 and 329.4 ⁴ set forth provisions for

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[488 P.2d 650] granting[5 Cal.3d 660] or denying a license. Petitioner applied for a bookstore license in December 1969. After two continuances the county public welfare commission held a hearing on April 21, 1970, at which time petitioner admitted a 1968 conviction for violation of Penal Code section 311.2 (selling, distributing, or exhibiting obscene matter). At the hearing the Los Angeles County Sheriff urged that section 329.4, subdivision (b)(1)(ii) required that petitioner's application be denied because of his 1968 conviction. The matter was taken under submission, and on May 20, 1970, the commission denied the application without opinion.

Pursuant to Los Angeles County Ordinance 5860, article 9.5, petitioner appealed the commission's decision to the license appeals board, which denied the appeal without opinion on September 21, 1970. While the appeal was pending petitioner was twice arrested and charged with operating a bookstore without a license. Petitioner filed demurrers to the complaints on the ground that the ordinance is unconstitutional. The demurrers were overruled and a trial date set. Petitioner seeks by this petition[5 Cal.3d 661] for writ of prohibition to restrain respondent court from proceeding with the trials. ⁵

Petitioner challenges the validity of the county ordinance on several grounds. His principal contentions are (1) that the absence of objective and definite standards for the issuance of a license renders the ordinance unconstitutional on its face; (2) that the ordinance improperly conditions the issuance of bookstore licenses upon qualifications that have no reasonable relationship to the occupation of selling books; and (3) that in any event it is constitutionally impermissible to prohibit a person from selling books solely on the basis of a past criminal conviction or convictions. Since there is merit in these contentions we find it unnecessary to consider petitioner's other contentions.

Although the activity of selling or distributing books is not exempt from reasonable regulation, it is entitled to First Amendment protection (Smith v. California (1959) 361 U.S. 147, 150, 80 S.Ct. 215, 4 L.Ed.2d 205; see Near v. Minnesota (1930) 283 U.S. 697, 720, 51 S.Ct. 625, 75 L.Ed. 1357; Burton v. Municipal Court (1968) 68 Cal.2d 684, 689, 68 Cal.Rptr. 721, 441 P.2d 281). Statutes which authorize public officials to license conduct protected by the First Amendment must set forth definite, objective guidelines for the issuance of such licenses. (Staub v. City of Baxley (1958) 355 U.S. 313, 321, 78 S.Ct. 277, 2 L.Ed.2d 302; Schneider v. State (1938) 308 U.S.

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[488 P.2d 651] 147, 162, 60 S.Ct. 146, 84 L.Ed. 155; Hague v. C.I.O. (1939) 307 U.S. 496, 516, 59 S.Ct. 954, 83 L.Ed. 1423; Interstate Circuit, Inc. v. City of Dallas (1968) 390 U.S. 676, 682, 88 S.Ct. 1298, 20 L.Ed.2d 225; Thornhill v. Alabama (1940) 310 U.S. 88, 97--98, 60 S.Ct. 736, 84 L.Ed. 1093; Burton v. Municipal Court, supra, 68 Cal.2d 684, 689, 68 Cal.Rptr. 721, 441 P.2d 281.) Accordingly statutes which have empowered public officials to exercise their discretionary authority with respect to First Amendment activities in light of the applicant's 'good character' (Schneider v. State, supra, 308 U.S. 147, 158, 60 S.Ct. 146, 84 L.Ed. 155; In re Porterfield (1946) 28 Cal.2d 91, 111, 168 P.2d 706), the anticipated effect of his conduct upon the 'public welfare or morals' (Staub v. City of Baxley, supra, 355 U.S. 313, 315, 78 S.Ct. 277, 2 L.Ed.2d 302; Shuttlesworth v. Birmingham (1969) 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162) and the 'sacrilegious' or 'cruel, obscene, indecent or immoral' nature of the subject matter to be distributed (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 506, 72 S.Ct. 777, 96 L.Ed. 1098; Holmby Productions, Inc. v. Vaughn (1955) 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770) [5 Cal.3d 662] have been held to be unconstitutionally vague and overbroad. The danger of censorship and arbitrary suppression inherent in the employment of such imprecise standards is so great that the voiding of these regulations is required even in the absence of proof of actual discrimination (Burton v. Municipal Court, supra, 68 Cal.2d 684, 696, 68 Cal.Rptr. 721, 441 P.2d 281; Interstate Circuit, Inc. v. Dallas, supra, 390 U.S. 676, 689--690, 88 S.Ct. 1298, 20 L.Ed.2d 225). Since statutes which accord officials excessive discretion are unconstitutional on their face, a fortiori those which vest unlimited discretionary power to issue or deny permits to engage in First Amendment activities are unconstitutional. (Kunz v. New York (1951) 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Lovell v. Griffin (1938) 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949.)

The Los Angeles County bookstore licensing ordinance fails to provide the necessary safeguards as it sets No standards governing the issuance of a license. By its terms section 329.4 provides that the commission May grant a license if it finds that none of the disqualifying factors exist. ⁶ Thus there is 'no guarantee that a permit will issue even if the application meets all of the * * * conditions of the section' (Dillon v. Municipal Court, 4 Cal.3d 860, 870, 94 Cal.Rptr. 777, 784, 484 P.2d 945, 952). The county insists that the ordinance does not confer such discretion upon the commission and that it must grant a license if the conditions are satisfied. Not only is such a construction inconsistent with past judicial interpretation (Dillon v. Municipal Court, supra, at pp. 870--871, 94 Cal.Rptr. 777, 484 P.2d 945) and with accepted definitions, ⁷ it flies in the fact of section 29 of the ordinance which clearly defines 'may' as permissive and 'shall' as mandatory. ⁸ The only reasonable conclusion is that the ordinance as written confers on the public welfare commission virtually unlimited authority to deny any application for a bookstore license. No other reading of the provisions of the ordinance is intellectually supportable.

The county contends that the language of section 329.4 that 'the Commission may grant (a license) if * * * it finds' that none of the disqualifying factors exist clearly implies that it must deny a license unless it can make such a finding. Accordingly, it concludes that as to persons who are disqualified, the commission has no discretion and that therefore the ordinance is valid insofar as it prohibits granting licenses to such persons. As so interpreted, however, the ordinance would nevertheless leave vast discretion[5 Cal.3d 663] to the commission.

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[488 P.2d 652] The ordinance does not define what showing the commission could demand that the applicant satisfied the host of qualifications set forth in section 329.4. Its application is therefore fraught with dangers of invidious discrimination. Moreover, many of the subdivisions of section 329.4 are themselves fatally vague. Subdivisions (b) and (c) do not define who may be deemed an 'associate' of the applicant whose conduct may disqualify the applicant. Subdivision (b)(3) does not define what constitutes 'acts of sexual misconduct,' and is therefore unconstitutionally vague. (See, e.g., Interstate Circuit, Inc. v. Dallas, supra, 390 U.S. 676, 688--690, 88 S.Ct. 1298, 20 L.Ed.2d 225 ('sexual promiscuity'); Holmby Productions, Inc. v. Vaughn (1955) 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770 ('indecent, immoral'); Commercial Pictures Corp. v. Regents (1954) 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329 ('cruel, obscene').) Finally, the commission is not limited to denying a license on the basis of a conviction of any of the enumerated crimes, but must determine whether the applicant or any of his associates have committed any of those crimes, a determination that may be fraught with uncertainty, particularly in the area of crimes involving obscenity.

Moreover, we believe that even if the ordinance limited its disqualification to applicants who had either been convicted of one or more of the enumerated crimes or whose adequately defined coparticipants in the...