TOBE v. CITY OF SANTA ANA

The Court of Appeal erred in holding that the Santa Ana ordinance impermissibly infringes on the right of the homeless to travel.

B. Punishment for Status.

[32][33] The Court of Appeal invalidated the ordinance for the additional reason that it imposed punishment for the "involuntary status of being homeless." [19] On that basis the court held the ordinance was invalid because such punishment violates the Eighth Amendment prohibition of cruel and unusual punishment, and the ban on cruel or unusual punishment of article I, section 17 of the California Constitution. We disagree with that construction of the ordinance and of the activity for which punishment is authorized. The ordinance permits punishment for proscribed conduct, not punishment for status.

The holding of the Court of Appeal is not limited to the face of the ordinance, and goes beyond even the evidence submitted by petitioners. Neither the language of the ordinance nor that evidence supports a conclusion that a person may be convicted and punished under the ordinance solely on the basis that he or she has no fixed place of abode. No authority is cited for the proposition that an ordinance which prohibits camping on public property punishes the involuntary status of being homeless or, as the Court of Appeal also concluded, is punishment for poverty. Robinson v. California (1962) 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, on which the court relied, dealt with a statute which criminalized the status of being addicted to narcotics. The court made it clear, however, that the conduct of using or possessing narcotics, even by an addict, is not impermissible punishment for status. (370 U.S. at pp. 664, 666, 82 S.Ct. at pp. 1419-1420.)

A plurality of the high court reaffirmed the Robinson holding in Powell v. State of Texas (1968) 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254, where it rejected a claim that punishment of an alcoholic for being drunk in public was constitutionally impermissible. "The entire thrust of Robinson's interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus. It thus does not deal with the question of whether certain conduct cannot constitutionally be punished because it is, in some sense, 'involuntary' or 'occasioned by a compulsion.' " (Id. at p. 533, 88 S.Ct. at p. 2155.)

As the district court observed in Joyce v. City and County of San Francisco, supra, 846 F.Supp. 843, 857, the Supreme Court has not held that the Eighth Amendment prohibits punishment of acts derivative of a person's status. Indeed, the district court questioned whether "homelessness" is a status at all within the meaning of the high court's decisions. "As an analytical matter, more fundamentally, homelessness is not readily classified as a 'status.' Rather, as expressed for the plurality in Powell by Justice Marshall, there is a 'substantial definitional distinction between a "status" ... and a "condition"....' 392 U.S. at 533, 88 S.Ct. at 2155. While the concept of status might elude perfect definition, certain factors assist in its determination, such as the involuntariness of the acquisition of that quality (including the presence or not of that characteristic at birth), see Robinson, 370 U.S. at 665-69 & [fn.] 9, 82 S.Ct. at 1420-21 & [fn.] 9, and the

[19 In reaching that decision, the Court of Appeal did not distinguish between involuntarily being homeless, and involuntarily engaging in conduct that violated the ordinance. The court assumed that an involuntarily homeless person who involuntarily camps on public property may be convicted or punished under the ordinance. That question, which the Court of Appeal and the dissent address, and which might be raised in an as applied challenge to the ordinance, is not before us because plaintiffs offered no evidence that the ordinance was being applied in that manner. We express no opinion on the proper construction of the ordinance, in particular on whether the conduct it prohibits must be "willful," or on whether or in what circumstances a necessity defense is available.]

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degree to which an individual has control over that characteristic." (846 F.Supp. at p. 857.)

The declarations submitted by petitioners in this action demonstrate the analytical difficulty to which the Joyce court referred. Assuming arguendo the accuracy of the declarants' descriptions of the circumstances in which they were cited under the ordinance, it is far from clear that none had alternatives to either the condition of being homeless or the conduct that led to homelessness and to the citations.

The Court of Appeal erred, therefore, in concluding that the ordinance is invalid because it permits punishment for the status of being indigent or homeless.

C. Vagueness and Overbreadth.

The Court of Appeal concluded that the Santa Ana ordinance was vague and overbroad. It based its vagueness conclusion on the nonexclusive list of examples of camping "paraphernalia" and "facilities" in the definitions of those terms. Those definitions were so unspecific, the court reasoned, that they invited arbitrary enforcement of the ordinance in the unfettered discretion of the police. The overbreadth conclusion was based on reasoning that the ordinance could be applied to constitutionally protected conduct. In that respect the court held that the verb "store" was overbroad as it could be applied to innocent conduct such as leaving beach towels unattended at public pools and wet umbrellas in library foyers.

1. Vagueness.

[34] The Tobe respondents and the People, real party in interest in the Zuckernick matter, argue that the Court of Appeal failed to apply the tests enunciated by the United States Supreme Court and this court in applying the vagueness doctrine. It has isolated particular terms rather than considering them in context. We agree.

A penal statute must define the offense with sufficient precision that "ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." (Kolender v. Lawson, supra, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903; see also Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110; United States v. Harriss (1954) 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989; Thornhill v. Alabama (1940) 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093.) "The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of 'life, liberty, or property without due process of law,' as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7)." (Williams v. Garcetti (1993) 5 Cal.4th 561, 567, 20 Cal.Rptr.2d 341, 853 P.2d 507.)

[35] To satisfy the constitutional command, a statute must meet two basic requirements: (1) the statute must be sufficiently definite to provide adequate notice of the conduct proscribed; and (2) the statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. (Williams v. Garcetti, supra, 5 Cal.4th 561, 567, 20 Cal.Rptr.2d 341, 853 P.2d 507; Walker v. Superior Court (1988) 47 Cal.3d 112, 141, 253 Cal.Rptr. 1, 763 P.2d 852; People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389-390, 250 Cal.Rptr. 515, 758 P.2d 1046.) Only a reasonable degree of certainty is required, however. (46 Cal.3d at p. 391, 250 Cal.Rptr. 515, 758 P.2d 1046.) The analysis begins with "the strong presumption that legislative enactments 'must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language." (Walker v. Superior Court, supra, 47 Cal.3d at p. 143, 253 Cal.Rptr. 1, 763 P.2d 852.)

The Court of Appeal erred in holding that the ordinance is unconstitutionally vague. The terms which the Court of Appeal considered vague are not so when the purpose clause of the ordinance is considered and the terms are read in that context as they should

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be. (Williams v. Garcetti, supra, 5 Cal.4th 561, 569, 20 Cal.Rptr.2d 341, 853 P.2d 507; see also, Clark v. Community for Creative Non-Violence, supra, 468 U.S. 288, 290-291, 104 S.Ct. 3065, 3067-3068, 82 L.Ed.2d 221; United States v. Musser (D.C.Cir.1989) 873 F.2d 1513; United States v. Thomas (D.C.Cir.1988) 864 F.2d 188, 197-198; ACORN v. City of Tulsa (10th Cir.1987) 835 F.2d 735, 744-745.) Contrary to the suggestion of the Court of Appeal, we see no possibility that any law enforcement agent would believe that a picnic in a public park constituted "camping" within the meaning of the ordinance or would believe that leaving a towel on a beach or an umbrella in a library constituted storage of property in violation of the ordinance.

The stated purpose of the ordinance is to make public streets and other areas readily accessible to the public and to prevent use of public property "for camping purposes or storage of personal property" which "interferes with the rights of others to use the areas for which they were intended." No reasonable person would believe that a picnic in an area designated for picnics would constitute camping in violation of the ordinance. The ordinance defines camping as occupation of camp facilities, living temporarily in a camp facility or outdoors, or using camp paraphernalia. The Court of Appeal's strained interpretation of "living," reasoning that we all use public facilities for "living" since all of our activities are part of living, ignores the context of the ordinance which prohibits not living in the sense of existing, but dwelling or residing on public property. Picnicking is not living on public property. It does not involve occupation of "tents, huts, or temporary shelters" "pitched" on public property or residing on public property.

Nor is the term "store" vague. Accumulating or putting aside items, placing them for safekeeping, or leaving them in public parks, on public streets, or in a public parking lot or other public area is prohibited by the ordinance. When read in light of the express purpose of the ordinance-- to avoid interfering with use of those areas for the purposes for which they are intended--it is clear that leaving a towel on a beach, an umbrella in the public library, or a student backpack in a school, or using picnic supplies in a park in which picnics are permitted is not a violation of the ordinance.

Unlike the Court of Appeal, we do not believe that People v. Mannon (1989) 217 Cal.App.3d Supp. 1, 265 Cal.Rptr. 616, and People v. Davenport (1985) 176 Cal.App.3d Supp. 10, 222 Cal.Rptr. 736, which upheld application of similar ordinances, were wrongly decided.

In Mannon the Appellate Department rejected a claim that the defendants were not "camping" within the definition of a Santa Barbara city ordinance. The court reasoned: "There is nothing ambiguous about the meaning of the word 'camp.' The definition is 'to pitch or occupy a camp ... to live temporarily in a camp or outdoors.' (Webster's Third New Intern. Dict. (1965) p. 322.) The illustrations of the word 'camp' utilized in the municipal code do not vary the traditional meaning of that word, they merely supplement it. The illustrations are consistent with the ordinary meaning of the word, i.e., living temporarily in the outdoors.... [A] reasonable person would understand 'camp' to mean to temporarily live or occupy an area in the outdoors, and would not be deceived or mislead by the undertaking of further explanation in the municipal code." (217 Cal.App.3d at pp. Supp. 4-5, 265 Cal.Rptr. 616.)

The ordinance is not vague. It gives adequate notice of the conduct it prohibits. It does not invite arbitrary or capricious enforcement. The superior court properly rejected that basis of the Tobe plaintiffs' challenge to the ordinance. The Court of Appeal erred in reversing that judgment on that ground.

2. Overbreadth.

[36] The Court of Appeal reasoned that the ordinance was broader than necessary since it banned camping on all public property. There is no such limitation on the exercise of the police power, however, unless an ordinance is vulnerable on equal protection grounds or directly impinges on a fundamental constitutional right.

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[37][38] If the overbreadth argument is a claim that the ordinance exceeds the police power of that city, it must also fail. There is no fundamental right to camp on public property, persons who do so are not a suspect classification, and neither of the petitions claims that the ordinance is invidiously discriminatory on its face. The Legislature has expressly recognized the power of a city "to regulate conduct upon a street, sidewalk, or other public place or on or in a place open to the public" (Pen.Code, § 647c) and has specifically authorized local ordinances governing the use of municipal parks. (Pub.Res.Code, § 5193.) Adoption of the ordinance was clearly within the police power of the city which may "make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Cal. Const., art. XI, § 7; Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 676, 209 Cal.Rptr. 682, 693 P.2d 261; Birkenfeld v. City of Berkeley, supra, 17 Cal.3d 129, 159-160, 130 Cal.Rptr. 465, 550 P.2d 1001.) As the more than 90 cities and the California State Association of Counties that have filed an amicus curiae brief in this court have observed, a city not only has the power to keep its streets and other public property open and available for the purpose to which they are dedicated, it has a duty to do so. (San Francisco Street Artists Guild v. Scott (1974) 37 Cal.App.3d 667, 674, 112 Cal.Rptr. 502.)

[39][40] The Court of Appeal also failed to recognize that facial challenge to a law on grounds that it is overbroad and vague is an assertion that the law is invalid in all respects and cannot have any valid application (Village of Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 494, fn. 5, 102 S.Ct. 1186, 1191, fn. 5, 71 L.Ed.2d 362) or a claim that the law sweeps in a substantial amount of constitutionally protected conduct. The concepts of vagueness and overbreadth are related, in the sense that if a law threatens the exercise of a constitutionally protected right a more stringent vagueness test applies. (Id. at p. 499, 102 S.Ct. at p. 1194; 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.)

Neither the Tobe plaintiffs nor the Zuckernick petitioners have identified a constitutionally protected right that is impermissibly restricted by application or threatened application of the ordinance. There is no impermissible restriction on the right to travel. There is no right to use of public property for living accommodations or for storage of personal possessions except insofar as the government permits such use by ordinance or regulation. Therefore, the ordinance is not overbroad, and is not facially invalid in that respect. It is capable of constitutional application.

Since the ordinance is not unconstitutionally overbroad, and the facial vagueness challenge must fail, the Court of Appeal erred in ordering dismissal of the complaints in the Zuckernick prosecution and enjoining enforcement of the ordinance.

IV
DISPOSITION

The judgment of the Court of Appeal is reversed.

LUCAS, C.J., and KENNARD, ARABIAN, and GEORGE, JJ., concur.

KENNARD, Associate Justice, concurring.
I join in the majority opinion. I write separately to clarify a point. The concurring opinion of Justice Werdegar states that the majority "evidently reject[s] on its merits, the claim that a homeless person may not constitutionally be punished for publicly engaging in harmless activities necessary to life, such as sleeping." (Conc. opn. of Werdegar, J., post, at p. 427 of 40 Cal.Rptr.2d, p. 1170 of 892 P.2d.) Because that issue is not properly before us in this facial challenge to the ordinance, the majority does not address it, and it expressly says so: "[T]he Court of Appeal did not distinguish between involuntarily being homeless, and involuntarily engaging in conduct that violated the ordinance. The court assumed that an involuntarily homeless person who involuntarily camps on public property may be convicted or punished under the ordinance. That question, which the Court

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of Appeal and the dissent address, and which might be raised in an 'as applied' challenge to the ordinance, is not before us because plaintiffs offered no evidence that the ordinance was being applied in that manner. We express no opinion on the proper construction of the ordinance, in particular on whether the conduct it prohibits must be 'willful,' or on whether or in what circumstances a necessity defense is available." (Maj. opn., ante, at p. 423, fn. 19 of 40 Cal.Rptr.2d, p. 1166, fn. 19 of 892 P.2d.)

Thus, the majority does not decide whether a person who by reason of necessity falls asleep in a public park may constitutionally be successfully prosecuted. Moreover, the majority does not address, much less reject on its merits, a claim that there are no constitutional limits on punishing conduct regardless of the circumstances. Nor does it determine whether or not homelessness is a "status" as that term is described in Robinson v. California (1962) 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, and in Powell v. Texas (1968) 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254. What the majority does decide is the issue before it: that the challenged camping ordinance does not on its face constitute prohibited punishment based on status. (Maj. opn., ante, at pp. 422-424 of 40 Cal.Rptr.2d, pp. 1165-1167 of 892 P.2d.)

WERDEGAR, Associate Justice, concurring.

I concur in the result and much of the reasoning of the majority. Specifically, I agree the procedural history of both cases (Tobe and Zuckernick) dictates they be treated as purely facial challenges to the ordinance, and that the ordinance survives such a challenge. I write separately because in the process of rejecting plaintiffs' attack on the ordinance as cruel or unusual punishment, the majority enters into the merits of an as applied attack, an issue not properly before us. I would leave the question to another day, when we are presented with a case that requires its resolution.

To succeed, a facial attack on the anti-camping ordinance as cruel and unusual punishment (U.S. Const., 8th Amend.) or as cruel or unusual punishment (Cal. Const., art. I, § 17) would require showing punishment under the ordinance, in all its possible applications, is cruel, unusual or both. Plaintiffs have not seriously advanced that proposition, and it could be rejected in few words. Clearly, some acts of camping in public places-- pitching a tent in the middle of a street, for example--may constitutionally be punished.

The majority unnecessarily goes far beyond that reasoning, however, to consider, and evidently reject on its merits, the claim a homeless person may not constitutionally be punished for publicly engaging in harmless activities necessary to life, such as sleeping. Apparently the majority would reject this claim for two reasons: first, because, in its view, conduct may always be constitutionally punished no matter how inseparable it is, causally or logically, from a person's status or condition (maj. opn., ante, at pp. 423- 424 of 40 Cal.Rptr.2d, pp. 1166-1167 of 892 P.2d); and second, because it questions whether homelessness is a "status" at all within the meaning of the United States Supreme Court's decision in Robinson v. California (1962) 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (maj. opn., ante, at pp. 423-424 of 40 Cal.Rptr.2d, pp. 1166-1167 of 892 P.2d.)

Not surprisingly, since it has disavowed the intent to consider the merits of an as applied challenge, the majority treats these issues cursorily. In so doing, it fails to consider the legal arguments actually made, or the authorities cited, by petitioners and their allied amici curiae. This portion of the majority opinion is pure dictum and should be read as such.

MOSK, Associate Justice, dissenting.

I dissent.

By addressing only the facial challenges to the Santa Ana ordinance now before us and looking only to its neutral language, the majority sidestep the pressing and difficult issues raised in this case. In the process, they erect new procedural barriers that will make future as applied challenges to the ordinance costly and protracted, while shielding the ordinance from meaningful review. Unlike

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the majority, I decline to ignore the purpose and effect of the ordinance, whether it is assessed on its face or as applied.

The City of Santa Ana (hereafter the City or Santa Ana) enacted the challenged ordinance as the latest offensive in its five-year campaign to banish the homeless. Under its broad provisions, a person who "camps" in any public area or "stores" any personal property in any public area is subject to citation and arrest for a criminal offense punishable by six months in jail. (Santa Ana Ord. No. NS-2160, adding art. VIII, § 10-400 et seq. to Santa Ana Mun.Code (hereafter the ordinance), §§ 10-402, 10-403.) It has been enforced against homeless persons whose sole "crime" was to cover themselves with a blanket and rest in a public area. Homeless persons with no alternative but to temporarily leave their personal belongings in public places are also subject to repeated citation and arrest for violation of the ordinance's prohibition against "storing" property.

The City has conceded that the purpose of the ordinance is to address the "problem" of the homeless living in its parks and other public areas. The ordinance has, moreover, been enforced in a manner that specifically targets the homeless. For those reasons, I conclude that the ordinance is unconstitutional both on its face and as applied to the homeless residents of Santa Ana. Although a city may reasonably control the use of its parks and other public areas, it cannot constitutionally enact and enforce an ordinance so sweeping that it literally prevents indigent homeless citizens from residing within its boundaries if they are unable to afford housing and unable to find a space in the limited shelters made available to them. The City cannot solve its "homeless problem" simply by exiling large numbers of its homeless citizens to neighboring localities.

Although not unconstitutionally vague, the ordinance fails under our decision in Parr v. Municipal Court (1971) 3 Cal.3d 861, 92 Cal.Rptr. 153, 479 P.2d 353 (hereafter Parr ), because it violates the guaranty of equal protection under both the United States Constitution (14th Amend.) and the California Constitution (art. I, § 7, subd. (a)). It also impermissibly impairs the fundamental right of the homeless, under both the United States and California Constitutions, to travel freely within the state. [1]

[1 Because I believe the ordinance is invalid on these grounds, I find it unnecessary to reach the issue whether the ordinance also punishes the homeless on the basis of their status in violation of the Eighth Amendment or article I, section 17, of the California Constitution. (But see Robinson v. California (1962) 370 U.S. 660, 665-667, 82 S.Ct. 1417, 1419-1421, 8 L.Ed.2d 758; Powell v. Texas (1968) 392 U.S. 514, 551, 88 S.Ct. 2145, 2164, 20 L.Ed.2d 1254 (conc. opn. of White, J.); id. at pp. 567, 570, 88 S.Ct. at pp. 2171, 2173 (dis. opn. of Fortas, J.); Pottinger v. City of Miami (S.D.Fla.1992) 810 F.Supp. 1551, 1561-1565 [city's practice of arresting homeless persons for such activities as sleeping, standing, and congregating in public places violated the Eighth Amendment].)]

Opinion Continued

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