Sanctity of Human Life Network v. Chp

• Decision Date: 27 January 2003
• Docket Number: No. C032534.,C032534.
• Court: California Court of Appeals Court of Appeals
• Parties: SANCTITY OF HUMAN LIFE NETWORK et al., Plaintiffs and Appellants, v. CALIFORNIA HIGHWAY PATROL, Defendant and Respondent.

129 Cal.Rptr.2d 708

105 Cal.App.4th 858

SANCTITY OF HUMAN LIFE NETWORK et al., Plaintiffs and Appellants, v. CALIFORNIA HIGHWAY PATROL, Defendant and Respondent.

No. C032534.

Court of Appeal, Third District.

January 27, 2003.

Law Offices of Scott M. Kendall and Scott M. Kendall for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, David S. Chaney, Senior Assistant Attorney General, James M. Schiavenza, Lead Supervising Deputy Attorney General, Jacob Appelsmith, Supervising Deputy Attorney General, Nina Thomson and Kenneth L. Swenson, Deputy Attorneys General, for Defendant and Respondent.

NICHOLSON, J.

Members of the Sanctity of Human Life Network (plaintiffs) stood on sidewalks of freeway overpasses during rush hours and held signs, visible to motorists below on the freeways, communicating their views concerning abortion. Responding to reports of freeway congestion caused by plaintiffs' activities, officers of the California Highway Patrol (CHP) directed plaintiffs to terminate their activities.

Plaintiffs filed this injunctive and declaratory relief action, seeking to enjoin the CHP from interfering with their display of handheld signs on freeway overpasses during rush hours on January 22, the anniversary of the United States Supreme Court's decision in Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. After trial, the court entered judgment in favor of the CHP.

We find that the statutes, Vehicle Code sections 21465 and 21467, under which the CHP claimed the power to terminate plaintiffs' activities, do not apply to plaintiffs' activities. However, we also conclude the CHP, under the facts presented at trial, acted appropriately pursuant to its authority to direct traffic. (See Veh.Code, § 2410.) We further conclude that the CHP's actions in this case did not violate plaintiffs' free speech rights. Accordingly, we modify the trial court's judgment to grant to plaintiffs declaratory relief only to the extent of declaring that the CHP may not interfere with plaintiffs' activities under the authority of Vehicle Code sections 21465 and 21467 and otherwise affirm the judgment. (Hereafter, unspecified code citations are to the Vehicle Code.)

TRIAL COURT PROCEEDINGS

As reflected in the statement of decision, the issue litigated at trial was whether plaintiffs can display handheld signs from freeway overpasses to the traffic below during rush hours on January 22, the Roe v. Wade anniversary date. In 1997 and 1998, the CHP ordered plaintiffs to take down the signs. The CHP intends to continue to issue such orders under the authority of sections 21465 and 21467 (governing display of traffic signs and declaring every prohibited sign a public nuisance) and Penal Code section 372 (relating to failure to remove a public nuisance). While plaintiffs objected to the statement of decision on several grounds, they did not dispute these facts.

For purposes of trial, the parties stipulated that (1) plaintiffs conducted their demonstrations on sidewalks on freeway overpasses rather than in the roadway, (2) the freeway overpasses involved are enclosed with cyclone fencing so there is no danger of signs falling onto the freeway, and (3) plaintiffs do not claim a right to attach their signs to public property.

On January 22, 1997, plaintiffs held signs on four freeway overpasses between 6:30 and 8:30 in the morning. An officer of the CHP arrived at one of the locations at about 7:30 a.m. After some discussion concerning plaintiffs' right to display the signs and the arrival of other officers, the officers took plaintiffs' signs. At other overpasses, CHP officers told plaintiffs they must leave, which they did.

In 1998, plaintiffs displayed their handheld signs on freeway overpasses during rush hour the morning of January 21 until they were told to leave by CHP officers. The CHP officers were dispatched to the freeway overpasses in response to complaints that plaintiffs' activities were causing freeway congestion. Plaintiffs were told they had to remove the signs. On the afternoon of January 22, 1998, plaintiffs planned to gather on freeway overpasses, displaying their handheld signs, between 3:30 and 5:00 p.m. At one overpass, at approximately 4:30 p.m., officers of the Sacramento Police Department arrived, cited plaintiffs and told them they had to leave. CHP officers were present but did not interact with plaintiffs. Plaintiffs held signs and demonstrated on unspecified dates in locations other than freeway overpasses with no interference from the CHP.

DISCUSSION

I Vehicle Code Traffic Sign Statutes

As noted, the CHP has terminated plaintiffs' activities on freeway overpasses under the purported authority of sections 21465 and 21467. The CHP officers who testified at trial stated they would continue to remove prohibited signs in view of freeway motorists under this authority, although the officers were less than clear concerning what is a prohibited sign. Plaintiffs assert these Vehicle Code sign statutes do not apply to their signs. After consideration of the statutes, then-context within the Vehicle Code, and their legislative history, we agree with plaintiffs that sections 21465 and 21467 do not apply to their signs.

While section 21465 prohibits certain signs, section 21467 merely provides authority for the CHP to remove such prohibited signs. We therefore focus on section 21465.

Section 21465 is found in division 11, chapter 2, article 3 of the Vehicle Code. Division 11 relates generally to rules of the road, while chapter 2 of division 11 relates to traffic signs, signals, and markings, and article 3 of that chapter designates offenses relating to traffic devices.

Section 21465 provides: "No person shall place, maintain, or display upon, or in view of, any highway any unofficial sign, signal, device, or marking, or any sign, signal, device, or marking which purports to be or is an imitation of, or resembles, an official traffic control device or which attempts to direct the movement of traffic or which hides from view any official traffic control device." There are two categories of prohibited signs, signals, devices, and markings under the language of the statute. They are (1) unofficial signs, signals, devices, or markings and (2) signs, signals, devices, or markings which (a) purport to be or are imitations of, or resemble, an official traffic control device, (b) attempt to direct the movement of traffic, or (c) hide from view any official traffic control device. Plaintiffs' signs did not meet the description of signs in the second category. Therefore, we must determine whether plaintiffs' signs were prohibited because they are in the first category.

We need not consider what is a signal, device, or marking because it has been agreed throughout this litigation that what plaintiffs were displaying were signs. An "unofficial sign," as opposed to an official sign, appears to be a traffic sign not placed by governmental entities, although nowhere in the Vehicle Code is "unofficial sign" defined. (See § 21351 [allowing governmental entities to place traffic signs, signals and other traffic control devices].)

During trial, the CHP's expert on the Vehicle Code, Officer Scott Hall, who teaches the Vehicle Code at the Highway Patrol Academy and is authorized to speak authoritatively concerning the meaning of the Vehicle Code for the CHP, testified concerning the CHP's enforcement of section 21465. His testimony reveals that the CHP does not have a clear or articulable definition of the scope of section 21465. Asked to explain the presence, considering section 21465, of certain signs within view from the freeway, Officer Hall testified: "Well, first of all, we don't enforce these signs. We enforce the official traffic control devices. We teach these are what they are. [Sic] [¶] These signs here are enforced by another department. I don't know if they have permits. I don't know if they're exempt from a permit. [¶] The fact that they're there tells us that somebody else who regulates these signs has either given them permission or has allowed them to be there." While he agreed billboards are unofficial signs, he simply stated that the CHP does not "enforce these signs." He continued: "There's two different types of signs. There's official, and there's permitted. [¶] An official sign regulates, warns and guides. The Department of Transportation puts up official signs. That's what we enforce. [¶] Anything else is unofficial. Unless you have a permit or you're exempt, you can't have it. That's what it is." The CHP's view is that bus advertising and bumper stickers do not violate section 21465. When asked why that is so, the officer replied: "You got me." Finally, Officer Hall testified that determination of what a prohibited sign is under section 21465 is purely a matter of discretion for the CHP: "[I]f this sign were a visual hazard, we would investigate it and go up to `em, find out if they had a permit for it and what the parameters of it were for. [¶] That's what 21467 says. If we deem it a visual hazard, we can take it down."

In the Vehicle Code, a "highway" is "a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street." (§ 360.) This broad definition is consistent with the CHP's understanding and enforcement efforts. Officer Hall testified that a "highway" is "pretty much any road that encompasses the main travel portion of the roadway, sidewalks, et cetera."

Applying these definitions to the terms used in the Vehicle Code, section 21465 prohibits any unofficial sign, meaning any non-governmental traffic sign, in view of any public place used for vehicular traffic. What is a traffic sign is the only ambiguity remaining. The plain meaning of "unofficial sign," taken out of the context of the statutory scheme relating to traffic signs, might suggest that the statute refers to any sign, traffic...