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
[2 Section 10-401 of the ordinance defines the terms: "(a) Camp
means to pitch or occupy camp facilities; to use camp
paraphernalia. "(b) Camp facilities include, but are not limited
to, tents, huts, or temporary shelters. "(c) Camp paraphernalia
includes, but is not limited to, tarpaulins, cots, beds, sleeping
bags, hammocks or non-city designated cooking facilities and
similar equipment. "(d) Park means the same as defined in section
31-1 of this Code. "(e) Store means to put aside or accumulate
for use when needed, to put for safekeeping, to place or leave in
a location. "(f) Street means the same as defined in section 1-2
of this Code."]
[3 The Court of Appeal opinion recites that the appeal and the
mandate petition had been consolidated. We find no order in the
record consolidating the appeal of the Tobe parties and the
mandate petition of the Zuckernick parties in that court,
however. We deem the recital in the Court of Appeal opinion to
be such an order.]
[4 The ordinance has been amended accordingly. That action is
not disputed by the parties.]
[5 Although the Tobe petition is denominated a petition for
writ of "Mandate/Prohibition," prohibition lies only to restrain
"the proceedings of any tribunal, corporation, board, or person
exercising judicial functions, when such proceedings are without
or in excess of the jurisdiction of such tribunal, corporation,
board, or person." (Code Civ.Proc., § 1102.) None of the named
respondents exercises judicial functions in the enforcement of
the ordinance. We consider the petition one for mandamus alone
therefore. (Neal v. State of California (1960) 55 Cal.2d 11, 16,
9 Cal.Rptr. 607, 357 P.2d 839.)]
407
homeless out of the city, and from conducting 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.
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.
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.
[1] 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, quoting Pacific Legal Foundation v. Brown
(1981) 29 Cal.3d 168, 180- 181, 172 Cal.Rptr. 487, 624 P.2d
1215.)
[2,3,4] An as applied challenge may seek (1) relief from a
specific application of a facially valid statute or ordinance to
an individual or class of individuals who are under allegedly
impermissible present restraint or disability as a result of the
manner or circumstances in which the statute or ordinance has
been applied, or (2) an injunction against future application of
the statute or ordinance in the allegedly impermissible manner it
is shown to have been applied in the past. It contemplates
analysis of the facts of a particular case or cases to determine
the circumstances in which the statute or ordinance has been
applied and to consider whether in those particular circumstances
the application deprived the individual to whom it was applied of
a protected right. (See, e.g., Broadrick v. Oklahoma (1973) 413
U.S. 601, 615-616, 93 S.Ct. 2908, 2917-2918, 37
409
L.Ed.2d 830; County of Nevada v. MacMillen (1974) 11 Cal.3d 662,
672, 114 Cal.Rptr. 345, 522 P.2d 1345; In re Marriage of Siller
(1986) 187 Cal.App.3d 36, 49, 231 Cal.Rptr. 757.) When a
criminal defendant claims that a facially valid statute or
ordinance has been applied in a constitutionally impermissible
manner to the defendant, the court evaluates the propriety of the
application on a case-by- case basis to determine whether to
relieve the defendant of the sanction. (Hale v. Morgan (1978) 22
Cal.3d 388, 404, 149 Cal.Rptr. 375, 584 P.2d 512.)
[5] If a plaintiff seeks to enjoin future, allegedly
impermissible, types of applications of a facially valid statute
or ordinance, the plaintiff must demonstrate that such
application is occurring or has occurred in the past. In Bowen v.
Kendrick (1988) 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520,
for instance, the court first distinguished the nature of facial
and as applied challenges to a statute which authorized federal
grants to organizations for services related to premarital
adolescent sexual relations and pregnancy. The plaintiffs had
standing as taxpayers to raise an establishment clause challenge
to the statute and to its application. The Supreme Court held
that the as applied challenge could be resolved only by
considering how the statute was being administered. Plaintiffs
had to show that specific grants were impermissible because the
grants went to " 'pervasively sectarian' religious institutions"
or had been used to fund " 'specifically religious activit[ies].'
" (487 U.S. at p. 621, 108 S.Ct. at p. 2581.) The matter was
remanded because the district court had not identified the
particular grantees or the particular aspects of their programs
for which constitutionally improper expenditures had been made.
Finally, the court held, a remedy should be fashioned to withdraw
federal agency approval of such grants.
[6][7] When a criminal defendant seeks relief from a present
application of a criminal statute or ordinance on constitutional
grounds, it is not the administrative agency's "application" of
the statute that is determinative, however. Whether the
particular application of a statute declaring conduct criminal is
constitutionally permissible can be determined only after the
circumstances of its application have been established by
conviction or otherwise. (See e.g. Murgia v. Municipal Court
(1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44.) Only then
is an as applied challenge ripe. To obtain mandate or other
relief from penalties imposed under a past application of the
law, the defendant must presently be suffering some adverse
impact of the law which the court has the power to redress.
[8] If instead it is contended that an otherwise valid statute
has been applied in a constitutionally impermissible manner in
the past and the plaintiff seeks an injunction against future
application of the statute in that manner, the plaintiff must
show a pattern of impermissible enforcement. (See, e.g., Van
Atta v. Scott (1980) 27 Cal.3d 424, 166 Cal.Rptr. 149, 613 P.2d
210; White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533
P.2d 222; Wirin v. Horral (1948) 85 Cal.App.2d 497, 193 P.2d 470;
cf. Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 232
Cal.Rptr. 814, 729 P.2d 80.)
[9] In most cases a plaintiff seeking this relief, either by a
petition for writ of mandamus or complaint for declaratory and
injunctive relief, must have a sufficient beneficial interest to
have standing to prosecute the action, and there must be a
present impermissible application of the challenged statute or
ordinance which the court can remedy. "[Code of Civil Procedure]
[s]ection 1086 expresses the controlling statutory requirements
for standing for mandate: 'The writ must be issued in all cases
where there is not a plain, speedy, and adequate remedy, in the
ordinary course of law. It must be issued upon the verified
petition of the party beneficially interested.' The requirement
that a petitioner be 'beneficially interested' has been generally
interpreted to mean that one may obtain the writ only if the
person has some special interest to be served or some
particular right to be preserved or protected over and above the
interest held in common with the public at large." (Carsten v.
Psychology Examining Com. (1980) 27 Cal.3d 793, 796, 166
Cal.Rptr. 844, 614 P.2d 276.)
410
[10] We need not decide if the Tobe plaintiffs have
such a beneficial interest even though two have never been cited
under the ordinance and one is not a homeless person, because as
taxpayers they have standing under Code of Civil Procedure
section 526a to restrain illegal expenditure or waste of city
funds on future enforcement of an unconstitutional ordinance or
an impermissible means of enforcement of a facially valid
ordinance. (White v. Davis, supra, 13 Cal.3d 757, 764, 120
Cal.Rptr. 94, 533 P.2d 222.) We must determine, therefore,
whether the petitions at issue in this case stated and have
perfected an as applied challenge to the Santa Ana ordinance.
1. The Tobe petition
[11] The first of these actions (Tobe) has been prosecuted as a
petition for writ of mandate by two homeless residents of Santa
Ana, each of whom intends to remain in the city, and neither of
whom can find affordable housing. The third plaintiff is a
resident of Santa Ana. All are taxpayers. Respondents are Santa
Ana, its mayor, its city manager, and its police chief.
Plaintiffs allege that they have been convicted in the past for
violating the ordinance and expect to be arrested in the future
for sleeping in public and conducting other ordinary and
necessary daily activities in public areas. The allegations of
the petition do not describe the circumstances of the past
arrests and the petition does not allege or describe either the
arrests or convictions of other persons that are claimed to have
been unconstitutional applications of the ordinance.
The petition alleges that respondents' "pattern of arresting,
detaining, harassing and incarcerating involuntarily homeless
persons such as petitioners, for sleeping and engaging in other
ordinary and essential activities of daily life" violates the
rights of homeless persons. The only allegations that describe
the pattern of enforcement that is claimed to be constitutionally
impermissible are ones which state that respondents have caused
plaintiffs and other homeless persons to risk arrest and/or
detention without probable cause and other "abuses, indignities
and punishment" for their homeless status and presence in Santa
Ana. Although the petition alleges in conclusory language that a
pattern of constitutionally impermissible enforcement of the
ordinance existed, plaintiffs never identified the particular
applications of the law to be enjoined. The only relief sought
in the petition is a writ of mandate enjoining any
enforcement of the ordinance by respondents. That relief is the
kind of relief sought in a facial attack.
Moreover, no alternative writ was issued and no evidentiary
hearing was held. Plaintiffs did not create a factual record on
which an injunction limited to improper applications of the
ordinance could have been fashioned.
Thus, notwithstanding the contrary conclusion of the dissent, the
allegations of the petition did not clearly state an as applied
challenge to the ordinance and the petition did not seek relief
from constitutionally impermissible applications or methods of
enforcing the ordinance. The petition sought to enjoin any
application of the ordinance to any person in any circumstance.
And, contrary to the view of the dissent, which relies on
"concessions" of the parties and the reporter's transcript,
rather than the actual judgment of the court, the superior court
did not rule on the petition as one encompassing an as applied
challenge. The order of that court which directed issuance of a
peremptory writ invalidating one sentence of the ordinance as
vague, did not identify or dispose of any such challenge.
Instead, the court found only that "enforcement of Santa Ana
Ordinance NS-2160 ... does not violate the rights of homeless
persons to freedom of movement" and that "petitioners' challenges
to the constitutionality of the remaining portions of Santa Ana
Ordinance NS-2160 are without merit."
The petition sought to enjoin enforcement of the ordinance on the
ground that it was invalid because it violated the rights of the
homeless. The court ruled that enforcement did not violate those
rights. The court made no findings related to a pattern of
enforcement of the ordinance and the judgment makes no mention of
the manner in which the ordinance has been applied.
411
Opinion Continued
Case Listing --- Proposition One ---- Peace Park