Tobe v. City of Santa Ana

• Decision Date: 24 April 1995
• Docket Number: No. S038530,S038530
• Court: California Supreme Court
• Parties: , 892 P.2d 1145, 63 USLW 2676 Archie TOBE et al., Plaintiffs and Appellants, v. CITY OF SANTA ANA et al., Defendants and Respondents. Dawn ZUCKERNICK et al., Petitioners, v. The MUNICIPAL COURT FOR the CENTRAL JUDICIAL DISTRICT OF ORANGE COUNTY, Respondent; The People, Real Party in Interest.

Page 402

40 Cal.Rptr.2d 402

9 Cal.4th 1069, 892 P.2d 1145, 63 USLW 2676

Archie TOBE et al., Plaintiffs and Appellants, v. CITY OF SANTA ANA et al., Defendants and Respondents.

Dawn ZUCKERNICK et al., Petitioners, v. The MUNICIPAL COURT FOR the CENTRAL JUDICIAL DISTRICT OF ORANGE COUNTY, Respondent;

The People, Real Party in Interest.

No. S038530.

Supreme Court of California.

April 24, 1995.

Robert J. Cohen, Crystal C. Sims, William Wise, Harry Simon, Kim Savage, Gill Deford, Lloyd A. Charton, Ivette Pena, Richard A. Rothschild, John E. Huerta, Gary Blasi, Robin S. Toma, Cathy Jensen, Paul L. Hoffman, Mark Rosenbaum, Scott Wylie, Christopher B. Mears, Schiff, Hardin & Waite, Michael L. Brody and Lisa A. Dunsky, for plaintiffs and appellants.

Janet Reno, U.S. Atty. Gen., Deval L. Patrick, U.S. Asst. Atty. Gen., Jessica Dunsay Silver, Thomas E. Chandler, Munger, Tolles & Olson, Jeffrey L. Bleich, Jonathan E. Altman, Michael R. Doyen, Susan R. Szabo, Inez D. Hope, Pamel A. Mohr, Maria Foscarinis, Jenner & Block, Carl S. Nadler, Thomas J. Perrelli, Blumenfeld & Cohen and Glenn B. Manishin as Amici Curiae on behalf of plaintiffs and appellants.

Edward J. Cooper, City Atty., and Robert J. Wheeler, Asst. City Atty., for defendants and respondents.

Louise H. Renne, City Atty. (San Francisco), Linda M. Ross and Michael E. Olsen, Deputy City Attys., Ronald A. Zumbrun, Anthony T. Caso, John G. Schmidt, Jr., Robert Teir, Michael J. Schroeder, Wilmer, Cutler & Pickering, Andrew N. Vollmer and Thomas Clark as Amici Curiae on behalf of defendants and respondents.

Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Kevin J. Phillips, Deputy Public Defender, for petitioners.

O'Melveny & Myers, Phillip R. Kaplan, Brett J. Williamson, John C. Hueston and Linda A. Bagley as Amici Curiae on behalf of petitioners.

No appearance for respondent.

Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., Wallace J. Wade, Asst. Dist. Atty., Kathleen M. Harper, David L. Himelson and E. Thomas Dunn, Jr., Deputy Dist. Attys., for real party in interest.

Kent S. Scheidegger as Amicus Curiae on behalf of real party in interest.

BAXTER, Associate Justice.

The Court of Appeal invalidated, on constitutional grounds, an ordinance of the City of Santa Ana (Santa Ana) which banned "camping" and storage of personal property, including camping equipment, in designated public areas. We granted the petitions for review of Santa Ana and the People to consider whether the ordinance is valid on its face and whether either of the actions involved in the consolidated appeal stated an "as applied" challenge to the ordinance.

We conclude only a facial challenge was perfected in the lower courts and that the Santa Ana ordinance is valid on its face. It does not impermissibly restrict the right to travel, does not permit punishment for status, and is not unconstitutionally vague or overbroad, the only constitutional claims pursued by plaintiffs. ¹

We shall, therefore, reverse the judgment of the Court of Appeal.

I BACKGROUND

In October 1992, Santa Ana added article VIII, section 10-400 et seq. (the ordinance) to its municipal code. The declared purpose of the ordinance was to maintain public streets and other public areas in the city in a clean and accessible condition. Camping and storage of personal property in those areas, the ordinance recited, interfered with the rights of others to use those areas for the purposes for which they were intended.

The ordinance provides:

"Sec. 10-402. Unlawful Camping.

"It shall be unlawful for any person to camp, occupy camp facilities or use camp paraphernalia in the following areas, except as otherwise provided:

"(a) any street;

"(b) any public parking lot or public area, improved or unimproved.

"Sec. 10-403. Storage of Personal Property in Public Places.

"It shall be unlawful for any person to store personal property, including camp facilities and camp paraphernalia, in the following areas, except as otherwise provided by resolution of the City Council:

"(a) any park;

"(b) any street;

"(c) any public parking lot or public area, improved or unimproved." ²

Plaintiffs in these consolidated actions ³ are: (1) homeless persons and taxpayers who appealed from a superior court order which struck "to live temporarily in a camp facility or outdoors" from the ordinance, ⁴ but otherwise denied their petition for writ of mandate by which they sought to bar enforcement of the ordinance (Tobe), ⁵ and (2) persons who, having been charged with violating the ordinance, demurred unsuccessfully to the complaints and thereafter sought mandate to compel the respondent municipal court to sustain their demurrers (Zuckernick).

Plaintiffs offered evidence to demonstrate that the ordinance was the culmination of a four-year effort by Santa Ana to expel homeless persons. There was evidence that in 1988 a policy was developed to show "vagrants" that they were not welcome in the city. To force them out, they were to be continually moved from locations they frequented by a task force from the city's police and recreation and parks departments; early park closing times were to be posted and strictly enforced; sleeping bags and accessories were to be disposed of; and abandoned shopping carts were to be confiscated. Providers of free food were to be monitored; sprinklers in the Center Park were to be turned on often; and violations of the city code by businesses and social service agencies in that area were to be strictly enforced. This effort led to a lawsuit which the city settled in April 1990.

Santa Ana then launched an August 15, 1990, sweep of the civic center area arresting and holding violators for offenses which included blocking passageways, drinking in public, urinating in public, jaywalking, destroying vegetation, riding bicycles on the sidewalk, glue sniffing, removing trash from a bin, and violating the fire code. Some conduct involved nothing more than dropping a match, leaf, or piece of paper, or jaywalking. The arrestees were handcuffed and taken to an athletic field where they were booked, chained to benches, marked with numbers, and held for up to six hours, after which they were released at a different location. Homeless persons among the arrestees claimed they were the victims of discriminatory enforcement. The municipal court found that they had been singled out for arrest for offenses that rarely, if ever, were the basis for even a citation.

In October 1990, Santa Ana settled a civil action for injunctive relief, agreeing to refrain from discriminating on the basis of homelessness, from taking action to drive the Evidence in the form of declarations regarding the number of homeless and facilities for them was also offered. In 1993 there were from 10,000 to 12,000 homeless persons in Orange County and 975 permanent beds available to them. When National Guard armories opened in cold weather, there were 125 additional beds in Santa Ana and another 125 in Fullerton. On any given night, however, the number of shelter beds available was more than 2,500 less than the need.

[892 P.2d 1152] homeless out of the city, and from conducting [9 Cal.4th 1083] future sweeps and mass arrests. That case, which was to be dismissed in 1995, was still pending when the camping ordinance was passed in 1992.

The Court of Appeal majority, relying in part on this evidence, concluded that the purpose of the ordinance--to displace the homeless--was apparent. On that basis, it held that the ordinance infringed on the right to travel, authorized cruel and unusual punishment by criminalizing status, and was vague and overbroad. The city contends that the ordinance is constitutional on its face. We agree. We also conclude that, if the Tobe petition sought to mount an as applied challenge to the ordinance, it failed to perfect that type of challenge.

II PRELIMINARY CONSIDERATIONS

A. Facial or As Applied Challenge.

Plaintiffs argue that they have mounted an as applied challenge to the ordinance as well as a facial challenge. While they may have intended both, we conclude that no as applied challenge to the ordinance was perfected. The procedural posture of the Zuckernick action precludes an as applied challenge, which may not be made on demurrer to a complaint which does not describe the allegedly unlawful conduct or the circumstances in which it occurred. The Tobe plaintiffs did not clearly allege such a challenge or seek relief from specific allegedly impermissible applications of the ordinance. Moreover, assuming that an as applied attack on the ordinance was stated, the plaintiffs did not establish that the ordinance has been applied in a constitutionally impermissible manner either to themselves or to others in the past.

Because the Court of Appeal appears to have based its decision in part on reasoning that would be appropriate to a constitutional challenge based on a claim that, as applied to particular defendants, the Santa Ana ordinance was invalid, we must first consider the nature of the challenge made by these petitioners.

A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. (Dillon v. Municipal Court (1971) 4 Cal.3d 860, 865, 94 Cal.Rptr. 777, 484 P.2d 945.) " 'To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute .... Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.' " (Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267, 5 Cal.Rptr.2d 545, 825 P.2d 438,...