White v. Davis

• Decision Date: 24 March 1975
• Citation: 13 Cal.3d 757,120 Cal.Rptr. 94,533 P.2d 222
• Court: California Supreme Court
• Parties: , 533 P.2d 222 Hayden V. WHITE, Plaintiff and Appellant, v. Edward M. DAVIS, as Chief of Police, etc., Defendant and Respondent. L.A. 30348.

Page 94

120 Cal.Rptr. 94

13 Cal.3d 757, 533 P.2d 222

Hayden V. WHITE, Plaintiff and Appellant, v. Edward M. DAVIS, as Chief of Police, etc., Defendant and Respondent.

L.A. 30348.

Supreme Court of California,

In Bank.

March 24, 1975.

A. L. Wirin, Fred Okrand, John D. O'Loughlin and Jill Jakes, Los Angeles, for plaintiff and appellant.

Burt Pines, City Atty., John T. Neville, Asst. City Atty., Robert E. Shannon and Burk M. Wiedner, Deputy City Attys., for defendant and respondent.

TOBRINER, Justice.

Do the state and federal Constitutions permit police officers, posing as students, to enroll in a major university and engage in the covert practice of recording class discussions, compiling police dossiers and filing 'intelligence' reports, so that the police have 'records' on the professors and students? Is this 'intelligence gathering' by the police covering discussions in university classes and in public and private meetings of university-sponsored organizations, constitutionally valid when such reports 'pertain to no illegal activity or acts'? The complaint in the present action challenges this practice of police surveillance as violative of the federal and state constitutional guarantees of freedom of speech, assembly, privacy and due process of law. To this complaint the superior court sustained a demurrer without leave to amend, and thereafter entered judgment in favor of defendant.

We have determined that the superior court erred in sustaining the demurrer; we conclude that the allegations of the complaint state a prima facie violation of freedom of speech and of assembly as well as of the state constitutional right of privacy. As we shall explain, a host of decisions of both the United States Supreme Court and of this court firmly establish the constitutionally enshrined status of freedom of speech and freedom of association in our nation's universities and colleges. Although the covert surveillance at issue here does not directly prohibit the exercise of protected rights in this realm, it is by now black letter First Amendment law that government activity which even indirectly inhibits the exercise of protected activity may run afoul of the First Amendment proscriptions. Given the delicate nature of academic freedom, we visualize a substantial probability that this alleged covert police surveillance will chill the exercise of First Amendment rights.

In light of this potentially grave threat to freedom of expression, constitutional authorities establish that the government bears the responsibility of demonstrating a compelling state interest which justifies such impingement and of showing that its purposes cannot be achieved by less restrictive means. At this stage of the proceedings, however, defendant has demonstrated no such justification; indeed, because the case arises upon the sustaining of a demurrer, defendant has yet even to file an answer in this litigation. Accordingly, we think that the demurrer should not have been sustained.

Moreover, the surveillance alleged in the complaint also constitutes a prima facie violation of the explicit 'right of privacy' recently added to our state Constitution. As we point out, a principal aim of the constitutional provision is to limit the infringement upon personal privacy arising from the government's increasing collection and retention of data relating to all facets of an individual's life. The alleged accumulation in 'police dossiers' of information gleaned from classroom discussions or organization meetings presents one clear example of activity which the constitutional amendment envisions as a threat to personal privacy and security. Though the amendment does not purport to invalidate all such information gathering, it does require that the government establish a compelling justification for such conduct. Once again, because the case arises after the sustaining of a demurrer, the government has not yet proffered any justification for the alleged covert information network and police dossiers. Consequently, the demurrer should have been overruled on this basis as well.

Accordingly, we reverse the judgment and remand for a trial on the merits.

1. The allegations of the complaint.

Plaintiff Hayden White, a professor of history at the University of California at Los Angeles and a resident taxpayer of the City of Los Angeles, instituted this taxpayer's suit against defendant Edward M. Davis, Chief of Police of the City of Los Angeles, seeking to enjoin the alleged illegal expenditure of public funds in connection with the police department's conduct of covert intelligence gathering activities at UCLA. The complaint alleges that with the authorization of Chief Davis, members of the Los Angeles Police Department, serving as 'secret informers and undercover agents,' have registered as students at UCLA, have attended classes held at the university and have submitted reports to the police department of discussions occurring in such classes. The complaint also alleges that the undercover police agents have joined university-recognized organizations, have attended public and private meetings of such organizations and have made reports on discussions at such meetings. The reports of these undercover agents are allegedly maintained by the police department in files, 'commonly designated as 'police dossiers'.' Finally, the complaint alleges that the reports and dossiers compiled by the police pursuant to these covert surveillance activities 'pertain to no illegal activity or acts.'

Asserting that the expenditure of public funds for such operation is illegal because such activity 'inhibits the exercise of freedom of speech and assembly, and abridges the right of due process of law and of privacy' in violation of the federal and state Constitutions, the complaint sought to enjoin the police department from expending funds for such activities in the future.

Defendant demurred to the complaint, contending that the above allegations failed to state a cause of action in view of past judicial decisions approving the use of undercover agents in police investigations. Defendant also relied heavily on an earlier federal district court decision which had dismissed a similar complaint directed at identical police surveillance operations at UCLA. As we have stated, the superior court sustained the demurrer without leave to amend and thereafter entered judgment in favor of defendant, dismissing the action.

2. As a taxpayer, plaintiff has standing under section 526a of the Code of Civil Procedure to seek an injunction against defendant's expenditure of public funds in connection with allegedly illegal police investigatory activities.

We have noted that this action is brought as a taxpayer's suit under section 526a of the Code of Civil Procedure to enjoin the allegedly illegal expenditure of public funds. ¹ The use of section 526a as a means of challenging the legality of ongoing police investigatory activities has a long and firmly established heritage in this state. In Wirin v. Horrall (1948) 85 Cal.App.2d 497, 504--505, 193 P.2d 470, for example, a Los Angeles taxpayer instituted an action attacking the constitutionality of a police practice of establishing dragnet 'police blockades' at which individuals and automobiles were routinely stopped and searched without a search warrant. In holding that the alleged police conduct violated applicable Fourth Amendment proscriptions, the Court of Appeal explicitly recognized the propriety of enjoining such illegal conduct by means of a taxpayer's suit.

Similarly in Wirin v. Parker (1957) 48 Cal.2d 890, 313 P.2d 844, our court upheld a taxpayer's challenge to a police department practice of conducting surveillance of private residences by means of concealed microphones without first obtaining a search warrant. Observing that '(i)t is elementary that public officers must themselves obey the law' we held in Parker that section 526a provided a general citizen remedy for controlling illegal governmental activity. (Id. at p. 894, 313 P.2d at p. 846.)

In view of these California precedents, plaintiff's present challenge to the alleged police conduct clearly constitutes a justiciable controversy, requiring this court to determine the constitutional validity of the underlying governmental activity; we do not understand defendant to assert otherwise. In this respect, however, the instant case differs fundamentally from the two federal court decisions, Laird v. Tatum (1972) 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 and Bagley v. City of Los Angeles (S.D.Cal.1971) (No. 71--166--JWC), upon which defendant places his principal reliance. As we explain, in dismissing complaints challenging governmental surveillance activities, the Laird and Bagley decisions rested on a restrictive federal doctrine of justiciability which does not apply to taxpayer suits in California.

In Laird varius individuals, who claimed to be the subjects of an intelligence gathering operation conducted by the United States Army, brought suit to enjoin the governmental activities on the ground that the operation inhibited the exercise of First Amendment rights. The Laird court phrased the narrow issue before it as 'whether the jurisdiction of a Federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose.' (Emphasis added.) (408 U.S. at p. 10, 92 S.Ct. at p. 2324.) In Laird a five-man majority ruled that such a complaint did not present a justiciable controversy cognizable in federal court. It concluded that an individual must suffer more specific harm than the mere subjection to governmental scrutiny, as the basis for his legal challenge. Because the complaint failed to allege...