[13 (See also Village of Arlington Heights v. Metropolitan
Housing Corp. (1977) 429 U.S. 252, 265-266, 97 S.Ct. 555,
563-564, 50 L.Ed.2d 450 [recognizing the relevance of
discriminatory purpose in assessing the validity of a rezoning
decision]; Parr, supra, 3 Cal.3d 861, 92 Cal.Rptr. 153, 479 P.2d
353; Serrano v. Priest (1976) 18 Cal.3d 728, 740-741, 747, 135
Cal.Rptr. 345, 557 P.2d 929 [invalidating California's facially
neutral school financing scheme in its entirety on the basis of
evidence showing it had a discriminatory effect]; see generally
California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d
836, 844, 157 Cal.Rptr. 676, 598 P.2d 836 ["both the legislative
history of the statute and the wider historical circumstances of
its enactment are legitimate and valuable aids in divining the
statutory purpose"].)]
433
aimed at "an extraordinary influx of undesirable and unsanitary
visitors to the City, sometimes known as 'hippies.' " (Id. at p.
863, 92 Cal.Rptr. 153, 479 P.2d 353.) We determined that despite
the neutral terms of the ordinance, we were required to look
beyond its literal language to determine its purpose. We
stressed that " '[a] state enactment cannot be construed for
purposes of constitutional analysis without concern for its
immediate objective [citations] and for its ultimate effect
[citations].' " (Id. at p. 864, 92 Cal.Rptr. 153, 479 P.2d 353.)
Among other precedents, we cited Justice Stephen J. Field's
perceptive opinion in Ho Ah Kow v. Nunan (D.Cal.1879) 12 Fed.Cas.
252, which invalidated a facially neutral San Francisco ordinance
requiring every male entering the county jail to have his hair
cut to a uniform length of one inch. Under the ordinance a
Chinese man convicted of a misdemeanor violation was subjected to
loss of his traditional queue.
Justice Field based his ruling on a conclusion that the purpose
and effect of the ordinance--although not expressed on the face
of the provision--was to punish the then racially unpopular
Chinese: "The class character of this legislation is none the
less manifest because of the general terms in which it is
expressed." (Ho Ah Kow v. Nunan, supra, 12 Fed.Cas. at p. 255.)
He referred to statements of supervisors in debate on the passage
of the ordinance for the purpose of ascertaining the "general
object of the legislation proposed, and the mischiefs sought to
be remedied." (Ibid.) He added, "When we take our seats on the
bench we are not struck with blindness, and forbidden to know as
judges what we see as men; and where an ordinance, though
general in its terms, only operates upon a special race, sect or
class, it being universally understood that it is to be enforced
only against that race, sect or class, we may justly conclude
that it was the intention of the body adopting it that it should
only have such operation, and treat it accordingly." (Ibid.)
Guided by Justice Field, we declined in Parr to "blind ourselves
to official pronouncements of hostile and discriminatory purpose
solely because the ordinance employs facially neutral language."
(3 Cal.3d at p. 865, 92 Cal.Rptr. 153, 479 P.2d 353.) We
examined the purpose expressed by the Carmel City Council in
enacting the measure and concluded that "[t]he irrefragable
implication is that the Carmel City Council sought, through
Municipal Code section 697.02, to rid the city of the blight it
perceived to be created by the presence of the hippies." (Ibid.)
In construing the Carmel ordinance we also examined its probable
impact: "Those officials responsible for the enforcement of the
law are put on notice that the public property in the city is in
imminent danger because of the influx of a particular class
against which the ordinance is unmistakably directed. The
inevitable effect must be discriminatory enforcement consistent
with the discriminatory purpose expressed by the council...."
(Parr, supra, 3 Cal.3d at p. 868, 92 Cal.Rptr. 153, 479 P.2d
353.) On these grounds we held that the ordinance violated equal
protection by stigmatizing a particular group. In the present
case as well, we are obligated to look behind the neutral facade
of the ordinance.
b. Purpose and Effect of the Ordinance
As in Parr, supra, 3 Cal.3d 861, 92 Cal.Rptr. 153, 479 P.2d 353,
although the ordinance is neutral on its face we need not go far
afield to determine the purpose that the City sought to achieve.
Over the past four years, Santa Ana has engaged in what the Court
of Appeal aptly called a "crusade against the homeless."
In a memorandum titled "VAGRANTS," dated June 16, 1988, the
City's Executive Director of the Recreation and Community
Services Agency informed the City Park Superintendent: "A task
force has been formed in an effort to deal with the
vagrants. The City Council has developed a policy that the
vagrants are no longer welcome in the City of Santa Ana.... In
essence, the mission of this program will be to move all vagrants
and their paraphernalia out of Santa Ana by continually removing
them from the places that they are frequenting in the City."
434
The City's Vagrancy Task Force developed and
implemented a plan that included discouraging food
providers--such as the Orange County Rescue Mission and the
Salvation Army--from feeding the homeless, turning on sprinklers
in public parks, and confiscating and destroying the personal
property of homeless residents. After a legal challenge to that
plan the City agreed to a settlement in April 1990 that included
posting maintenance hours, ceasing to conduct maintenance
"sweeps" in public areas, and providing for storage and retrieval
of confiscated property.
Only a few months later, however, in August 1990, the Santa Ana
police mounted "Operation Civic Center," described in an internal
memorandum as follows: "Eddie West Field [an open-air football
stadium adjacent to the Civic Center] was used as the command
post because it supplied a secured area where we could house
multiple arrestees. In addition, it also allowed access to
restroom facilities and water for the persons arrested. Four
Police Service Officers were assigned to the command post to
process all arrestees. This included photographing,
fingerprinting, documentation and running record and warrant
checks. Two officers were also assigned to the command post for
care and custody of the arrestees. Five 2-man observer teams
were assigned throughout the plaza area looking for criminal
activity. Each of the five 2- man teams was completely concealed
and was able to observe the violations from a safe and secure
location. Five 2-man arrest teams were called into the plaza
area by the observers and the arrest teams took the violators
into custody. The violators were then transported to the command
post at Eddie West Field where they were processed."
There were 28 arrests for littering, 2 for drinking in public, 7
for urinating in public, 18 for jaywalking, 2 for destroying
vegetation, 2 for riding bicycles on a sidewalk, 1 for glue
sniffing, 1 for removing trash from a bin, and 2 for an obscure
violation of the City's fire code. Two persons who proved they
had homes were released. The homeless arrestees were handcuffed,
transported to an athletic field for booking, chained to benches
for up to six hours, and identified with numbers written on their
arms with markers. At the conclusion of the detention, the
police loaded the homeless into vans, drove them to the edge of
the Central Command Area of the Santa Ana Police Department, and
dropped them off.
The homeless brought a further civil action against the City for
injunctive relief, asserting they were victims of discriminatory
law enforcement. The trial court agreed, ruling that the
homeless were a cognizable class who had been singled out for
arrest for offenses that rarely, if ever, even drew citations in
Santa Ana. The trial court concluded: "In short, this Court
finds that the Santa Ana Police Department deliberately and
intentionally implemented a program which targeted those persons
living in the Civic Center, the homeless."
In October 1990 the City apparently settled the action. It
agreed that "it shall be [ ] the policy of [the City of Santa
Ana] to refrain from discriminating against individuals on the
basis of their homelessness" and it shall not "take individual or
concerted action to drive homeless individuals from Santa Ana."
The stipulation was made an order of the court, but no judgment
has been entered. The case is to be dismissed during this year.
The ordinance before us reflects the same purpose as Santa Ana's
previous official policies: to drive "vagrants" out of Santa
Ana. There can be no doubt that it was enacted to resolve what
the City refers to in its brief as "the homeless problem." As
that brief explains: "The City is directly impacted by the
homeless problem because homeless persons attempt to live on
property it owns or controls, thereby causing the myriad of
public health and police related concerns which the City must
combat in the face of constantly diminishing financial
resources." The City again expressly conceded at oral argument
that the purpose of the ordinance was to address the problem of
homeless persons "camping" in public areas, including the parking
lot across from City Hall. [14]
[14 The majority expressly venture no opinion on whether and in what circumstances a necessity defense might be available. (Maj.
opn., ante, p. 423, fn. 19 of 40 Cal.Rptr.2d, p. 1166, fn. 19 of
892 P.2d.) They nonetheless note that a deputy district attorney
"expressed his opinion at oral argument" that a necessity defense
"might" be available to "truly homeless" persons. (Maj. opn.,
ante, p. 412 of 40 Cal.Rptr.2d, p. 1155 of 892 P.2d fn. 8.)
Because of that "opinion" the majority refuse to conclude that
the City intends to enforce the ordinance against persons who
have no alternative to "camping" or storing "camp paraphernalia"
on public property. Nothing in the ordinance provides an
exception for homeless persons, however, and the district
attorney's "opinion" does not purport to bind the City or even to
express the City's intent in implementing the ordinance.
Moreover, even if a necessity defense were available, it would
not prevent the City from repeatedly citing and arresting
homeless persons and subjecting them to an endless round of
costly and complex judicial proceedings. Thus the effect of the
ordinance would continue to be to drive the homeless from Santa
Ana, as it is clearly intended to do.]
435
Even if the City had not so candidly admitted its
purpose, however, the inevitable effect of the ordinance is to
target the homeless. Because there are beds in local shelters for
only about one in ten homeless persons in Santa Ana, an ordinance
outlawing "camping" in all public areas effectively accomplishes
the purpose of driving out the homeless, despite its neutral
wording. Although the City and amici curiae observe that the
ordinance would also apply to the mayor and the Girl
Scouts, it is unlikely that any significant number of Santa Ana
residents or visitors other than the homeless would choose to
sleep, protected only by a blanket, in a public parking lot or to
store personal property in the open. [15]
We concluded in Parr, supra, 3 Cal.3d at page 870, 92 Cal.Rptr.
153, 479 P.2d 353, that "we cannot be oblivious to the
transparent, indeed the avowed, purpose and the inevitable effect
of the ordinance in question: to discriminate against an
ill-defined social caste whose members are deemed pariahs by the
city fathers. This court has been consistently vigilant to
protect racial groups from the effects of official prejudice, and
we can be no less concerned because the human beings currently in
disfavor are identifiable by dress and attitudes rather than by
color." That vigilance is even more important now. Today's
pariahs are no longer the relatively carefree "hippies," many of
whom chose that lifestyle, but persons who are homeless largely
by necessity and who face far greater restrictions under this
ordinance than merely keeping off the grass. [16]
A century ago Anatole France exposed the cruel hypocrisy of such
"neutral" laws against the indigent: "The law, in its majestic
equality, forbids the rich as well as the poor to sleep under
bridges, to beg in the streets, and to steal bread." (France
(1894) Le Lys Rouge, ch. 7.) Even under a facial analysis we
cannot blind ourselves to the evident intent of the Santa Ana
ordinance.
[15 (See Waldron, Homelessness & the Issue of Freedom (1991) 39
UCLA L.Rev. 295, 313 [Anti-camping ordinances "have and are known
and even intended to have a specific effect on the homeless which
is different from the effect they have on the rest of us....
[E]veryone is perfectly well aware of the point of passing these
ordinances, and any attempt to defend them on the basis of their
generality is quite disingenuous."].)]
[16 The majority attempt to distinguish Parr on its facts,
arguing that the Carmel ordinance "banned a customary use of the
city park." (Maj. opn., ante, p. 416 of 40 Cal.Rptr.2d, p. ----
of 892 P.2d.) But their discussion of Parr is merely dictum,
because they decline to acknowledge or address the equal
protection claims on the merits. It is also unpersuasive. The
Carmel ordinance made it unlawful to "[c]limb any tree; or walk,
stand or sit upon monuments, vases, fountains, railings, fences,
planted areas, or upon any other property not designed or
customarily used for such purposes, or to sit on any sidewalks or
steps, or to lie or sit on any lawns." (Parr, supra, 3 Cal.3d at
p. 862, 92 Cal.Rptr. 153, 479 P.2d 353, italics added.) Thus,
Parr did not turn on the issue of the "customary" use of the
public areas in Carmel, but, as here, on whether a city could
prohibit innocuous behavior for the constitutionally
impermissible purpose of driving a disfavored group from its
bounds. The majority also argue unpersuasively that we must
ignore the obvious purpose of the Santa Ana ordinance because,
two years previously, Santa Ana had agreed to discontinue
attempts to force the homeless to leave. Their approach permits
the City to continue to discriminate against the homeless so long
as it does not expressly articulate an impermissible purpose. We
have explicitly rejected the notion that the mere appearance of
neutrality can be used to shield discriminatory legislation.
(Parr, supra, 3 Cal.3d at p. 870, 92 Cal.Rptr. 153, 479 P.2d 353;
see also Mulkey v. Reitman (1966) 64 Cal.2d 529, 50 Cal.Rptr.
881, 413 P.2d 825, affirmed sub. nom. Reitman v. Mulkey (1967)
387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830.)]
436
Recognizing that intent, I would hold
that the ordinance impermissibly discriminates against the
homeless and thereby violates equal protection. [17]
III. Right to Travel
The ordinance also impermissibly penalizes the fundamental right
of indigent homeless persons to travel to or remain in Santa Ana,
by denying them the basic necessities of sleeping and storing
personal belongings in any public areas.
a. Constitutional Freedom to Travel and Abide
Both the United States Supreme Court and the courts of California
have expressly recognized a fundamental constitutional right to
travel, "a basic human right protected by the United States and
California Constitutions as a whole." (In re White (1979) 97
Cal.App.3d 141, 148, 158 Cal.Rptr. 562; see, e.g., Shapiro v.
Thompson, supra, 394 U.S. at p. 629, 89 S.Ct. at p. 1328.) [18]
A law implicates the right to travel when it either penalizes
travel or is intended to impede travel. (Attorney General of
N.Y. v. Soto- Lopez, supra, 476 U.S. at p. 903, 106 S.Ct. at p.
2321 ["A state law implicates the right to travel when it
actually deters such travel [citations], when impeding travel is
its primary objective [citations], or when it ' "uses any
classification which serves to penalize the exercise of that
right." ' "].)
[17 We need not hold, therefore, that homeless persons are
members of a "suspect class" in order to invalidate the ordinance
on equal protection grounds. As in Parr, supra, 3 Cal.3d 861, 92
Cal.Rptr. 153, 479 P.2d 353, the purpose of the ordinance--to
banish a disfavored group--is plainly not a legitimate state
interest. (See also U.S. Dept. of Agriculture v. Moreno (1973)
413 U.S. 528, 534, 93 S.Ct. 2821, 2826, 37 L.Ed.2d 782
[invalidating a federal statute that discriminated against
"hippies" and "hippie" communes: "if the constitutional
conception of 'equal protection of the laws' means anything, it
must at the very least mean that a bare congressional desire to
harm a politically unpopular group cannot constitute a legitimate
governmental interest."]; City of Cleburne, Texas v. Cleburne
Living Center, Inc. (1985) 473 U.S. 432, 448, 105 S.Ct. 3249,
3259, 87 L.Ed.2d 313 [holding city's denial of building permit
invalid because the decision discriminated against the "mentally
retarded"].)]
[18 Although the Supreme Court has never reached a consensus
concerning the specific constitutional source of the right to
travel, it has often either relied upon or recognized the equal
protection clause as a potential source of the right. (See,
e.g., Shapiro v. Thompson, supra, 394 U.S. at pp. 630, 634, 89
S.Ct. at pp. 1331; Zobel v. Williams (1982) 457 U.S. 55, 66-67,
102 S.Ct. 2309, 2316-2317, 72 L.Ed.2d 672 (conc. opn. of Brennan,
J.); Memorial Hospital v. Maricopa County (1974) 415 U.S. 250,
253-270, 94 S.Ct. 1076, 1079-1088, fn. 2, 39 L.Ed.2d 306).) "
'[T]he right to travel receives its most forceful expression in
the context of equal protection analysis.' " (Attorney General
of N.Y. v. Soto-Lopez (1986) 476 U.S. 898, 902, fn. 2, 106 S.Ct.
2317, 2320, fn. 2 (plur. opn. of Brennan, J.).)]
Opinion Continued
Case Listing --- Proposition One ---- Peace Park