Simpson v. Municipal Court

• Decision Date: 21 January 1971
• Court: California Court of Appeals Court of Appeals
• Parties: Robert H. SIMPSON, Petitioner and Appellant, v. The MUNICIPAL COURT, SACRAMENTO MUNICIPAL COURT DISTRICT, COUNTY OFSACRAMENTO, State of California, Respondent; The PEOPLE of the State of California by their Attorney, John M. PRICE,District Attorney for the County of Sacramento, Real Party In Interest. Civ. 12616.

Page 417

92 Cal.Rptr. 417

14 Cal.App.3d 591

Robert H. SIMPSON, Petitioner and Appellant, v. The MUNICIPAL COURT, SACRAMENTO MUNICIPAL COURT DISTRICT, COUNTY OFSACRAMENTO, State of California, Respondent;

The PEOPLE of the State of California by their Attorney, John M. PRICE,District Attorney for the County of Sacramento, Real Party In Interest.

Civ. 12616.

Court of Appeal, Third District, California.

Jan. 21, 1971.

Hearing Denied March 16, 1971.

Kenneth M. Wells, Public Defender, Sacramento, for petitioner-appellant.

Charles C. Marson, A.C.L.U., San Franciso, amicus curiae, for petitioner.

Joseph Samuel, Sacramento, amicus curiae, for N. K. Fields.

Daniel J. Kremer, Deputy Atty. Gen., Sacramento, for respondent.

FRIEDMAN, Acting Presiding Justice.

Appellant Robert H. Simpson is the defendant in a pending misdemeanor prosecution in the Sacramento Municipal Court. The charge is picketing within the State Capitol, in violation of section 171f, subdivision 3, of the California Penal Code. ¹ Asserting the statute's unconstitutionality, he petitioned the Superior Court for a writ of prohibition restraining his prosecution. The writ was an appropriate remedy. (Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 463--467, 171 P.2d 8.) He appeals from a denial of relief, contending that the ban on picketing within the State Capitol violates the freedoms of speech and petition secured to him by the First Amendment and protected against state invasion by the Fourteenth Amendment of the Federal Constitution and article I, sections 9 and 10, of the California Constitution.

There is no charge here of violent, boisterous behavior, of 'fighting words' or of obstructive or disruptive activity. Indeed, since subdivision 2 of the statute prohibits activity which disrupts the orderly conduct of official business, we construe subdivision 3 to forbid peaceable, nonobstructive picketing within the interior of the State Capitol building.

We commence with the generalization that peaceful picketing in labor disputes and for political purposes, carried on in locations open generally to the public, is protected by the First Amendment. (Amalgamated Food Emp. Union Local 590 v. Logan Valley Plaza (1968) 391 U.S. 308, 313, 88 S.Ct. 1601, 20 L.Ed.2d 603; In re Lane (1969) 71 Cal.2d 872, 874, 79 Cal.Rptr. 729, 457 P.2d 561; see Note, Nonlabor Picketing or Boycott, 93 A.L.R.2d 1284.) The generalization has an important qualification. Peaceful picketing involves elements of both communication and conduct, that is, patrolling; hence valid state interests permit certain controls which would be impermissible if applied to pure speech. (Amalgamated Food Emp. Union Local 590 v. Logan Valley Plaza, supra, 391 U.S. at p. 313, 88 S.Ct. 1601; In re Berry (1968) 68 Cal.2d 137, 152, 65 Cal.Rptr. 273, 436 P.2d 273.)

Here the statute foreseeably focuses on picketing as an instrument of political persuasion and protest. Picketing is but one form of symbolic behavior aimed at achieving political results. Varying mixtures of 'speech plus action' have evoked claims of First Amendment protection. ² The pervading theme is the First Amendment's proscription of limitations on speech-connected activities except in 'carefully restricted circumstances' reasonably designed to protect some legitimate public interest. (Tinker v. Des Moines Independent Community School Dist., supra, 393 U.S. at p. 513, 89 S.Ct. 733; Cox v. Louisiana, supra, 379 U.S. at p. 553, 85 S.Ct. 453; In re Hoffman (1967) 67 Cal.2d 845, 849, 64 Cal.Rptr. 97, 434 P.2d 353; Kalven, The Concept of the Public Forum, 1965 Supreme Court Review, pp. 1--32.)

Location of the picketing, not its manner or purpose, is the pivotal factor here. Streets, sidewalks, parks and to some extent other public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising these rights cannot be denied broadly and absolutely. (Amalgamated Food Emp. Union Local 590 v. Logan Valley Plaza, supra, 391 U.S. at p. 315, 88 S.Ct. 1601, and cases cited; Diamond v. Bland, 3 Cal.3d 653, 657--658, 91 Cal.Rptr. 501, 477 P.2d 733.) Given the validity of some limited regulation, there remains the necessity of finding a demarcation between the constitutionally permissible and impermissible. As good a measure as any is that suggested by Justice Frankfurter, who described the problem as a reconciliation between the free expression of ideas in public places and protection of the 'primary use' of those places. ³ The inquiry should be infused with a healthy bias in favor of the challenged freedom. The cure of slight inconveniences or annoyances will not justify the regulation. (Cox v. Louisiana, supra, 379 U.S. at p. 564, 85 S.Ct. 476.) 'In every case, therefore, where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.' (Schneider v. State, supra, 308 U.S. at p. 161, 60 S.Ct. at p. 151.)

The location is the interior of a designated public building, the State Capitol of California. The constitutional inquiry gains piquancy because the Capitol Building is devoted, in fact and as a matter of law, primarily to the use of the state legislature. ⁴ We take judicial notice of certain facts concerning the building, its surroundings and its use. (Evid.Code, § 452, subd. (g).) Although limited portions of the capitol house the offices of the Governor and several other constitutional officers, the major part of the building is occupied by the Senate and Assembly chambers, legislative committee hearing rooms, individual offices of the state's 120 legislators, offices of the legislature's legal, administrative and consultative staffs and facilities for the press and broadcasters. Extensive corridors interlace the complex of facilities and offices. During legislative sessions many citizens visit the legislators' offices and committee rooms, acting as paid or volunteer advocates for varying points of view. Tourists throng the halls and chamber galleries, having no viewpoint to express but feeling a sense of proprietary participation in self-government. Organized groups of school children come to the capitol by bus, under the superintendence of teachers, to gain impressions of government processes.

Surrounding the building is the State Capitol Park, occupying an area of 10 square blocks. A broad plaza lies outside the capitol's west entrance and a small one at the east entrance. The west plaza is the frequent site of civic and ceremonial occasions, of concerts, receptions for visiting dignitaries, public meetings and demonstrations. Pickets urging a wide variety of viewpoints often stand or walk outside the west entrance and, less frequently, at the building's other entrances. Distribution of handbills and solicitation of petition signatures are customary activities outside the Capitol entrances, particularly at the west plaza.

Parks, streets and courthouse grounds are devoted to uses which are neutral, even antithetical, to political expression. (See Cox v. Louisiana, supra, 379 U.S. at p. 562, 85 S.Ct. 476.) Not so a state capitol. The primary use of the building invites the exercise of First Amendment freedoms. 'The greatest of all the forces that influence the legislator is public opinion.' ⁵ Chief Justice Hughes once described free political discussion as the essential means for the attainment of responsive government and for change by lawful means. (Stromberg v. California (1931) 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117.) The vitality and responsiveness of the legislative process demand legislative accessibility to the individual and collective appeals and protests of citizens. Picketing the capitol corridors is not only an appeal to public opinion; it is an appeal to the legislature. The delicacy of balance is intensified here, because the building's primary use requires assurances of free discussion and openness to petition.

Obedient to the mandate of Schneider v. State, we appraise 'the substantiality of the reasons advanced' in support of the challenged statute. The legislature was at some pains to describe its purpose to protect citizen-visitors from physical activity which it deemed inimical to the orderly discussion and thoughtful consideration of legislative problems. (See fn. 1, supra.) Since subdivisions 1 and 2 of section 171f aim at activities within the legislative chambers and other places where official business is transacted, the ban on picketing in subdivision 3 bears principally upon activity in the capitol corridors. The declaration of legislative purpose rests upon dual assumptions first, that picketing in the corridors creates an oppressive atmosphere which discourages and repels citizen-visitors; second, that picketing the legislature at that location debases the quality of its deliberative processes.

The statutory declaration describes a legitimate interest in protecting the constituents of California from the pressure of patrols in the capitol halls. Mr. Simpson apparently formed a one-man patrol. Numerous one-man patrols might operate simultaneously, each expressing a different plaint or theme. A number of organized patrols might compete for the best locations. Citizen-visitors vary in age, sophistication, in exposure to social stress, in experience with patrolling pickets and in sensitivity to their emanations of pressure. Many constituents would...