TOBE v. CITY OF SANTA ANA

C. Facial Challenges on Vagueness Grounds.

The Court of Appeal granted relief to the Zuckernick petitioners without regard to either the limitations on a demurrer to a criminal complaint or vagueness challenges by criminal defendants.

[21][22] "The rule is well established ... that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and that a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations." (In re Cregler, supra, 56 Cal.2d 308, 313, 14 Cal.Rptr. 289, 363 P.2d 305.) If the statute clearly applies to a criminal defendant's conduct, the defendant may not challenge it on grounds of vagueness. (Parker v. Levy (1974) 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439; People v. Green (1991) 227 Cal.App.3d 692, 696, 278 Cal.Rptr. 140.) However, in some cases, a defendant may make a facial challenge to the statute, if he argues that the statute improperly prohibits a " 'substantial amount of constitutionally protected conduct,' " whether or not its application to his own conduct may be constitutional. (Kolender v. Lawson (1983) 461 U.S. 352, 358-359, fn. 8, 103 S.Ct. 1855, 1858-1859, fn. 8, 75 L.Ed.2d 903.) [15]

The Zuckernick petitioners argued in support of their demurrers that the ordinance failed to give fair and adequate notice of prohibited conduct, had vague enforcement standards which encourage arbitrary and discriminatory arrests and convictions, and reached constitutionally protected conduct. The vagueness aspect of their challenge to the ordinance is governed by the rule stated in In re Cregler, supra, 56 Cal.2d 308, 313, 14 Cal.Rptr. 289, 363 P.2d 305. The last ground, an overbreadth, not a vagueness, argument, is governed by Kolender v. Lawson, supra, 461 U.S. 352, 358-359, fn. 8, 103 S.Ct. 1855, 1858-1859, fn. 8, 75 L.Ed.2d 903.)

[23] The Zuckernick petitioners' vagueness challenge was addressed to the terms "camp," "camp facilities," and "camp paraphernalia," as defined in the ordinance, and the term "temporary shelter," which is not defined. The definitions in the ordinance include terms which those petitioners do not claim are vague and which may apply to petitioner's conduct. Thus the People may seek to establish violation of the ordinance on the basis that one or more of the petitioners pitched or used a tent on a public street or parking lot. Because the Zuckernick challenge to the ordinance was brought by demurrer and the nature of their conduct has not been determined, those petitioners cannot show at this stage of the proceedings that the ordinance did not clearly apply to their conduct. To that extent, therefore, the vagueness challenge of the Zuckernick petitioners is premature.

The Tobe plaintiffs are not persons presently charged with violating the ordinance, however. Their actions do not seek to avoid prosecution for criminal acts. They are suing as taxpayers to restrain expenditure of public funds on the enforcement of an allegedly unconstitutional ordinance. (Code Civ.Proc., § 526a.) The restrictions applicable to

[15 Because we conclude that the Santa Ana ordinance is not overbroad, we need not decide whether the overbreadth doctrine is applicable outside the area of freedoms protected by the First Amendment. The Supreme Court has stated that overbreadth challenges will be entertained only if a First Amendment violation is alleged. "[O]utside the limited First Amendment context, a criminal statute may not be attacked as overbroad." (Schall v. Martin (1984) 467 U.S. 253, 268, fn. 18, 104 S.Ct. 2403, 81 L.Ed.2d 207.) Other decisions of the United States Supreme Court suggest that this limitation is not invariably observed. (See Kolender v. Lawson, supra, 461 U.S. 352, 358-359, fn. 8, 103 S.Ct. 1855, 1858-1859, fn. 8, 75 L.Ed.2d 903.) We will assume arguendo that the overbreadth doctrine may be applied outside the First Amendment context.]

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vagueness challenges by criminal defendants do not apply to their action. With these considerations in mind, we now turn to the constitutional bases for the decision of the Court of Appeal.

III
FACIAL VALIDITY OF THE SANTA ANA ORDINANCE

A. Right to Travel.

[24] Although no provision of the federal Constitution expressly recognizes a right to travel among and between the states, that right is recognized as a fundamental aspect of the federal union of states. "For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States." (Passenger Cases (1849) 48 U.S. (7 How.) 283, 492, 12 L.Ed. 702 (dis. opn. of Taney, C.J.).) In the Passenger Cases, supra, 48 U.S. (7 How.) 283 the court struck down taxes imposed by the States of New York and Massachusetts on aliens who entered the state from other states and countries by ship. The basis for the decision as found in the opinions of the individual justices was that the tax invaded the power of Congress over foreign and interstate commerce. The opinion of Chief Justice Taney, in which he disagreed with the majority on the commerce clause issue, also addressed the tax as applied to citizens of the United States arriving from other states. That tax he believed to be impermissible. Some later decisions of the court trace recognition of the constitutional right of unburdened interstate travel to that opinion. (See, e.g., Shapiro v. Thompson (1969) 394 U.S. 618, 630, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600.) And, relying on the dissenting opinion of the Chief Justice in the Passenger Cases, the court struck down a tax on egress from the State of Nevada in Crandall v. Nevada (1867) 73 U.S. (6 Wall.) 35, 18 L.Ed. 745, holding that the right of interstate travel was a right of national citizenship which was essential if a citizen were to be able to pass freely through another state to reach the national or a regional seat of the federal government.

Other cases find the source of the right in the privileges and immunities clause. In Paul v. Virginia (1868) 75 U.S. (8 Wall.) 168, 19 L.Ed. 357, the court rejected a challenge predicated on the privileges and immunities clause made by a corporation to a tax imposed by the State of Virginia on out-of-state insurance companies. In so doing, it recognized interstate travel as a right guaranteed to citizens. "It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws." (Id., at p. 180, italics added.)

In the Slaughter-House Cases (1872) 83 U.S. (16 Wall.) 36, 21 L.Ed. 394, the court equated the rights protected by the privileges and immunities clause to those in the corresponding provision of the Articles of Confederation which provided that the inhabitants of each state were to have " 'the privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State....' " (83 U.S. at p. 75.) The privileges and immunities clause was also the source of the right of interstate travel as an incident of national citizenship recognized by the court in Twining v. New Jersey (1908) 211 U.S. 78, 97, 29 S.Ct. 14, 19, 53 L.Ed. 97 and United States v. Wheeler (1920) 254 U.S. 281, 293, 41 S.Ct. 133, 134, 65 L.Ed. 270. In Williams v. Fears (1900) 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186,

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the right was held to be one protected by the Fourteenth Amendment as well as other provisions of the Constitution. "Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution." (Id., at p. 274, 21 S.Ct. at p. 129.) Again, in Kent v. Dulles (1958) 357 U.S. 116, 127, 78 S.Ct. 1113, 1119, 2 L.Ed.2d 1204, freedom to travel was recognized as "an important aspect of the citizen's 'liberty.' " (See also Edwards v. California (1941) 314 U.S. 160, 177, 183, 62 S.Ct. 164, 168, 171, 86 L.Ed. 119 (conc. opns. of Douglas, J. and Jackson, J.).) The right to travel, or right of migration, now is seen as an aspect of personal liberty which, when united with the right to travel, requires "that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." (Shapiro v. Thompson, supra, 394 U.S. 618, 629, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600; see also United States v. Guest (1966) 383 U.S. 745, 757-758, 86 S.Ct. 1170, 1177-1178, 16 L.Ed.2d 239.)

[25] In a line of cases originating with Shapiro v. Thompson, supra, 394 U.S. 618, 89 S.Ct. 1322, the court has considered the right to travel in the context of equal protection challenges to state laws creating durational residency requirements as a condition to the exercise of a fundamental right or receipt of a state benefit. In those cases the court has held that a law which directly burdens the fundamental right of migration or interstate travel is constitutionally impermissible. Therefore a state may not create classifications which, by imposing burdens or restrictions on newer residents which do not apply to all residents, deter or penalize migration of persons who exercise their right to travel to the state.

In Shapiro, where public assistance was denied residents who had lived in the state for less than one year, the court held that durational residence as a condition of receiving public assistance constituted invidious discrimination between residents, and that if a law had no other purpose than chilling the exercise of a constitutional right such as that of migration of needy persons into the state the law was impermissible. (Shapiro v. Thompson, supra, 394 U.S. 618, 627, 631, 89 S.Ct. 1322, 1327, 1329.) Further, "any classification which serves to penalize the exercise of [the right of migration], unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." (Id. at p. 634, 89 S.Ct. at p. 1331.)

Next, durational residence requirements for voting were struck down by the court in Dunn v. Blumstein (1972) 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274. Again the question arose as an equal protection issue. The court held that the state must have a compelling reason for the requirement because it denied residents the right to vote, a fundamental political right, and because the law "classif[ies] ... residents on the basis of recent travel, penalizing those persons ... who have gone from one jurisdiction to another during the qualifying period. Thus, the durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel." (Id. at p. 338, 92 S.Ct. at p. 1001.) The court emphasized the imposition of a "direct" burden on travel: "Obviously, durational residence laws single out the class of bona fide state and county residents who have recently exercised this constitutionally protected right, and penalize such travelers directly." (Ibid.) It also took care to point out, as it had in Shapiro v. Thompson, supra, 394 U.S. 618, 638, fn. 21, 89 S.Ct. 1322, 1333, fn. 21, that a law which did not penalize residents on the basis of recent travel would not be vulnerable to a similar challenge. The court explained: "Where, for example, an interstate migrant loses his driver's license because the new State has a higher age requirement, a different constitutional question is presented. For in such a case, the new State's age requirement is not a penalty imposed solely because the newcomer is a new resident; instead, all residents, old and new, must be of a prescribed age to drive." (405 U.S. at p. 342, fn. 12, 92 S.Ct. at p. 1003, fn. 12.)

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The court's focus on whether the law directly burdened, by penalizing, interstate travel continued in Memorial Hospital v. Maricopa County (1974) 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306, in which a durational residence requirement for indigent, nonemergency medical care at county expense was challenged. The court held that the restriction denied newcomers equal protection, impinged on the right to travel by denying basic necessities of life, and penalized interstate migration. (Id. at pp. 261- 262, 94 S.Ct. at pp. 1083-1084; see also Benson v. Arizona State Board of Dental Examiners (9th Cir.1982) 673 F.2d 272, 277 [licensing requirement that did not disadvantage newcomers vis-a-vis previous residents did not penalize exercise of right to travel].)

In each of these cases the court had before it a law which denied residents a fundamental constitutional right (voting) or a governmental benefit (public assistance, medical care) on the basis of the duration of their residence. The law created two classes of residents. In Zobel v. Williams (1982) 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672, where the right to share in oil revenues was based on the duration of residence in Alaska, the court noted that the right to travel analysis in those cases, which did not create an actual barrier to travel, was simply a type of equal protection analysis. "In addition to protecting persons against the erection of actual barriers to interstate movement, the right to travel, when applied to residency requirements, protects new residents of a state from being disadvantaged because of their recent migration or from otherwise being treated differently from longer term residents. In reality, right to travel analysis refers to little more than a particular application of equal protection analysis. Right to travel cases have examined, in equal protection terms, state distinctions between newcomers and longer term residents." (Id. at p. 60, fn. 6, 102 S.Ct. at p. 2313, fn. 6.)

The right of intrastate travel has been recognized as a basic human right protected by article I, sections 7 and 24 of the California Constitution. (In re White (1979) 97 Cal.App.3d 141, 158 Cal.Rptr. 562.) There the court concluded that a condition of probation which barred a defendant convicted of prostitution from designated areas in the City of Fresno should be modified to avoid an overly restrictive impact on the defendant's right to travel. The court held that "the right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions as a whole. Such a right is implicit in the concept of a democratic society and is one of the attributes of personal liberty under common law. (See 1 Blackstone, Commentaries 134; U.S. Const., art. IV, § 2 and the 5th, 9th and 14th Amends.; Cal. Const., art. I, § 7, subd. (a) and art. I, § 24....)" (Id. at p. 148, 158 Cal.Rptr. 562.) In White, as in the early United States Supreme Court cases, the court addressed a direct burden on travel.

Neither the United States Supreme Court nor this court has ever held, however, that the incidental impact on travel of a law having a purpose other than restriction of the right to travel, and which does not discriminate among classes of persons by penalizing the exercise by some of the right to travel, is constitutionally impermissible.

By contrast, in a decision clearly relevant here, a zoning law which restricted occupancy to family units or nonfamily units of no more than two persons was upheld by the Supreme Court notwithstanding any incidental impact on a person's preference to move to that area because the law was not aimed at transients and involved no fundamental right. (Village of Belle Terre v. Boraas (1974) 416 U.S. 1, 7, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797.)

[26] Courts of this state have taken a broader view of the right of intrastate travel, but have found violations only when a direct restriction of the right to travel occurred. (Adams v. Superior Court (1974) 12 Cal.3d 55, 61-62, 115 Cal.Rptr. 247, 524 P.2d 375.) In In re White, supra, 97 Cal.App.3d 141, 158 Cal.Rptr. 562, the petitioner had been barred directly from traveling to specified areas. In In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 271 Cal.Rptr. 389, a parent had been ordered to move to another county as a condition of continued custody of a child. Indirect or incidental burdens on travel resulting

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from otherwise lawful governmental action have not been recognized as impermissible infringements of the right to travel and, when subjected to an equal protection analysis, strict scrutiny is not required. If there is any rational relationship between the purpose of the statute or ordinance and a legitimate government objective, the law must be upheld. (Adams v. Superior Court, supra, 12 Cal.3d 55, 61-62, 115 Cal.Rptr. 247, 524 P.2d 375.)

This court has also rejected an argument that any legislation that burdens the right to travel must be subjected to strict scrutiny and sustained only if a compelling need is demonstrated. In Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473, an initiative ordinance which banned issuance of new building permits until support facilities were available was challenged as an impermissible burden on the right to travel. We rejected the argument because the impact of the ordinance was only an indirect burden on the right to travel. The ordinance did not penalize travel and resettlement although an incidental impact was to make it more difficult to establish residence in the place of one's choosing. (Id. at pp. 602-603, 135 Cal.Rptr. 41, 557 P.2d 473; see also R.H. Macy & Co. v. Contra Costa County (1990) 226 Cal.App.3d 352, 367-369, 276 Cal.Rptr. 530.)

[27] We do not question the conclusion of the Court of Appeal that a local ordinance which forbids sleeping on public streets or in public parks and other public places may have the effect of deterring travel by persons who are unable to afford or obtain other accommodations in the location to which they travel. Assuming that there may be some state actions short of imposing a direct barrier to migration or denying benefits to a newly arrived resident which violate the right to travel, the ordinance does not do so. It is a nondiscriminatory ordinance which forbids use of the public streets, parks, and property by residents and nonresidents alike for purposes other than those for which the property was designed. It is not constitutionally invalid because it may have an incidental impact on the right of some persons to interstate or intrastate travel.

[28] As we have pointed out above, to succeed in a facial challenge to the validity of a statute or ordinance the plaintiff must establish that " 'the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional provisions.' " (Arcadia Unified School Dist. v. State Dept. of Education, supra, 2 Cal.4th 251, 267, 5 Cal.Rptr.2d 545, 825 P.2d 438, quoting Pacific Legal Foundation v. Brown, supra, 29 Cal.3d 168, 180-181, 172 Cal.Rptr. 487, 624 P.2d 1215.) All presumptions favor the validity of a statute. The court may not declare it invalid unless it is clearly so. (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 814-815, 258 Cal.Rptr. 161, 771 P.2d 1247.)

Since the Santa Ana ordinance does not on its face reflect a discriminatory purpose, and is one which the city has the power to enact, its validity must be sustained unless it cannot be applied without trenching upon constitutionally protected rights. The provisions of the Santa Ana ordinance do not inevitably conflict with the right to travel. The ordinance is capable of constitutional application. The ordinance prohibits "any person" from camping and/or storing personal possessions on public streets and other public property. It has no impact, incidental or otherwise, on the right to travel except insofar as a person, homeless or not, might be discouraged from traveling to Santa Ana because camping on public property is banned. An ordinance that bans camping and storing personal possessions on public property does not directly impede the right to travel. (People v. Scott (1993) 20 Cal.App. 4th Supp. 5, 13, 26 Cal.Rptr.2d 179.) Even assuming that the ordinance may constitute an incidental impediment to some individuals' ability to travel to Santa Ana, since it is manifest that the ordinance is capable of applications which do not offend the Constitution in the manner suggested by petitioners and the Court of Appeal, the ordinance must be upheld.

Our conclusion that the Santa Ana ordinance does not impermissibly infringe on the right of the homeless, or others, to travel, finds support in the decision of the United States District Court in Joyce v. City and County of San Francisco (1994) 846 F.Supp. 843. The plaintiffs, on behalf of a class of

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homeless individuals, sought a preliminary injunction to prevent implementation of a program of enforcement (the Matrix Program) of state and municipal laws which were commonly violated by the homeless residents of the City. Among the laws to be enforced were those banning "camping" or "lodging" in public parks and obstructing sidewalks. It was claimed, inter alia, that the Matrix Program infringed on the right to travel.

The court rejected that argument and refused to require the City to show a compelling state interest to justify any impact the program might have on the right of the class members to travel. It noted that the program was not facially discriminatory as it did not distinguish between persons who were residents of the City and those who were not. In so doing, the court suggested that the opinion of the Court of Appeal in this case was among those which constituted extensions of the right to travel that appeared to be "unwarranted under the governing Supreme Court precedent." (Id., at p. 860.) We agree.

[29] The right to travel does not, as the Court of Appeal reasoned in this case, endow citizens with a "right to live or stay where one will." While an individual may travel where he will and remain in a chosen location, that constitutional guaranty does not confer immunity against local trespass laws and does not create a right to remain without regard to the ownership of the property on which he chooses to live or stay, be it public or privately owned property.

[30][31] Moreover, lest we be understood to imply that an as applied challenge to the ordinance might succeed on the right to travel ground alone, we caution that, with few exceptions, [16] the creation or recognition of a constitutional right does not impose on a state or governmental subdivision the obligation to provide its citizens with the means to enjoy that right. (Harris v. McRae (1980) 448 U.S. 297, 317-318, 100 S.Ct. 2671, 2688-2689, 65 L.Ed.2d 784; Maher v. Roe (1977) 432 U.S. 464, 471-474, 97 S.Ct. 2376, 2380-2383, 53 L.Ed.2d 484.) Santa Ana has no constitutional obligation to make accommodations on or in public property available to the transient homeless to facilitate their exercise of the right to travel. (Lindsey v. Normet (1972) 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36.) Petitioners' reliance on Clark v. Community for Creative Non-Violence (1984) 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221, for the proposition that Santa Ana is obliged to provide areas in which camping is permitted on public property is misplaced. The issue in Clark was whether the refusal of the National Park Service to permit demonstrators who wished to call attention to the plight of the homeless to sleep in Lafayette Park and on the Mall in the nation's capital violated the First Amendment rights of the demonstrators. The court held that it did not, as other areas were available for the purpose. Clark dealt with an affirmative right--that of free speech--which could be restricted in public fora only by reasonable, content-neutral time, place and manner restrictions. (Id., at p. 293, 104 S.Ct. at p. 3069). The court expressly recognized the authority of the National Park Service "to promulgate rules and regulations for the use of the parks in accordance with the purposes for which they were established." [17] (468 U.S. at p. 289, 104 S.Ct. at p. 3067.)

Petitioners in this case make no claim that the right they seek, to camp on public property in Santa Ana, is expressive conduct protected by the First Amendment. There is no comparable constitutional mandate that sites on public property be made available for camping to facilitate a homeless person's right to travel, just as there is no right to use public property for camping or storing personal belongings. [18]

[16 E.g., the right to counsel guaranteed by the Sixth Amendment to the United States Constitution.]

[17 The ordinance mirrors the National Park Service rules and regulations governing camping in several respects. Those rules prohibit camping by using park lands as living accommodations and storing personal belongings on them. (36 C.F.R. §§ 2.22, 2.61.)]

[18 Petitioners' argument that Santa Ana may not deny homeless persons the right to live on public property anywhere in the city unless it provides alternative accommodations also overlooks the Legislature's allocation of responsibility to assist destitute persons to counties. (Welf. & Inst. Code, §§ 17000-17001.5.) If the inability of petitioners and other homeless persons in Santa Ana to afford housing accounts for their need to "camp" on public property, their recourse lies not with the city, but with the county under those statutory provisions.]

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Opinion Continued

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