Cranston v. City of Richmond

BIRD, C. J.

I respectfully dissent. I would hold that Richmond City Personnel rule XII, section 2, subdivision (a) (hereafter rule XII(2)(a)) is unconstitutionally vague because it provides no ascertainable standard of conduct.

As the majority note, where the statute challenged on vagueness grounds does not involve “First Amendment freedoms,” the statute is examined “in light of the facts of the case at hand.” (United States v. Mazurie (1975) 419 U.S. 544, 550 [ 42 L.Ed.2d 706, 713 , 95 S.Ct. 710 ]; accord United States v. National Dairy Corp. (1963) 372 U.S. 29, 32-33 [ 9 L.Ed.2d 561, 565 , 83 S.Ct. 594 ]; maj. opn., ante, at p. 763.) “In examining statutes challenged on vagueness grounds, courts have looked not merely at the hypothetical cases to which the statute has uncertain applicability, but also at the act allegedly committed by the charged defendant.” (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 492 [ 134 Cal.Rptr. 630 , 556 P.2d 1081 ].) However, it is impossible to determine whether a statute is vague as applied to the conduct at issue where the statute is so vague that it provides no standard whatsoever. Such a provision “is vague ‘not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’ [Citation.] Such a provision simply has no core.” (Smith v. Goguen (1974) 415 U.S. 566, 578 [ 39 L.Ed.2d 605, 614-615 , 94 S.Ct. 1242 ], italics in original.) In my opinion rule XII(2)(a) is such a provision.

Rule XII(2)(a) provides that an employee of the City of Richmond can be discharged for “[cjonduct unbecoming an employee of the City Service.” *776 The majority concede that the term “ ‘unbecoming’ has no inherent, objective content from which ascertainable standards defining the proscribed conduct can be fashioned.” (California School Employees Assn. v. Foothill Community College Dist. (1975) 52 Cal.App.3d 150, 156 [ 124 Cal.Rptr. 830 ]; maj. opn., ante, at p. 765.) Therefore, rule XII(2)(a) is unconstitutionally vague under the rationale of Smith v. Goguen, supra, 415 U.S. at page 578 [39 L.Ed.2d at pages 614-615]. However, the majority contend that where, as here, the statute or regulation contains no ascertainable standard, “the required specificity may nonetheless be provided by the common knowledge and understanding of members of the particular vocation or profession to which the statute applies.” (Maj. opn., ante, at p. 765.)

In Morrison v. State Board of Education (1969) 1 Cal.3d 214, 229 [ 82 Cal.Rptr. 175 , 461 P.2d 375 ] (hereafter Morrison) this court held that under former Education Code section 13202, teachers could be disciplined only for conduct indicating an unfitness to teach. In light of this construction, the court held that the statute had the requisite specificity to survive a vagueness challenge because “[t]eachers, particularly in the light of their professional expertise, will normally be able to determine what kind of conduct indicates unfitness to teach.” (Id., at p. 233; see also Perea v. Fales (1974) 39 Cal.App.3d 939, 942 [ 114 Cal.Rptr. 808 ] (hereafter Perea).)

In Perea , a police officer was disciplined for speeding. The court found that the term “conduct unbecoming an officer” was not unconstitutionally vague although the term “fails, on its face, to provide a standard.” Relying on Morrison , the court in Perea held that “the required certainty may be provided by the common knowledge of members of the particular vocation when the regulation does not itself contain specific standards; it may be that police officers ‘will normally be able to determine what kind of conduct indicates unfitness’ to work in law enforcement.” (Ibid., citation omitted.)

However, the rule developed in Morrison and applied in Perea has been applied only to statutes that refer to a specific occupation or profession. Morrison and Perea do not apply to statutes that purport to provide a standard of conduct governing a broad range of employees. (California School Employees Assn. v. Foothill Community College Dist., supra, 52 Cal.App.3d at pp. 154-155 (hereafter Foothill)-, Jabola v. Pasadena Redevelopment Agency (1981) 125 Cal.App.3d 931, 935-936 [ 178 Cal.Rptr. 452 ] (hereafter Jabola).)

In Foothill, the provision challenged on vagueness grounds was nearly identical to rule XII(2)(a). “On its face, the rule proscribes conduct that is ‘unbecoming an employee in the public service.’ It is obvious that any apparent limitation on the employee’s conduct through the use of this quali *777 fying term is illusory, for ‘unbecoming’ has no inherent, objective content from which ascertainable standards defining the proscribed conduct can be fashioned. Like beauty, its content exists only in the eye of the beholder.” ( Foothill, supra, 52 Cal.App.3d at pp. 155-156.) Because the regulation at issue in Foothill was applicable, by its terms, to a wide range of employees, the court refused to find that the requisite specificity was provided by reference to the standards of the particular profession. “The district argues that here, as in Perea , and other authorities cited, the required certainty may be provided by the common knowledge of members of the particular vocation when the regulation does not itself contain specific standards. This contention, however, is without merit in the instant case since the category of employees in public service is far too broad to provide any particular guidelines.” (Id., at pp. 154-155, italics in original.)

In Jabola, the language at issue was similar to that contained in rule XII(2)(a). Relying on Foothill, the court in Jabola found that a charge of “ ‘conduct unbecoming an employee of the’ agency” was unconstitutionally vague. ( Jabola, supra, 125 Cal.App.3d at pp. 934-935.) The court refused to look to the profession of the disciplined employee to render the charge sufficiently specific. “The cases relied on by the agency here sustained a somewhat similar [rule] on the basis that, in those cases, the regulation applied to employees within a specialized professional or semiprofessional group, having, within that group, recognized standards of professional conduct. Here the regulation covers all employees of the agency; it sets forth no basis by which an employee may know what ‘conduct’ the agency may treat as ‘unbecoming.’” (Id., at pp. 935-936, italics in original; see also Hand v. Board of Examiners (1977) 66 Cal.App.3d 605, 622-623 [ 136 Cal.Rptr. 187 ].)

I agree with the rationale of Foothill and Jabola and would apply the reasoning of those decisions to the facts of this case. It is well established that the term “conduct unbecoming” has no “inherent, objective content from which ascertainable standards defining the proscribed conduct can be fashioned” (Foothill, supra, 52 Cal.App.3d at p. 156 ; Jabola, supra, 125 Cal.App.3d at p. 935 ; accord Perea, supra, 39 Cal.App.3d at p. 942 ; maj. opn., ante, at p. 765). The term is not rendered any more specific by addition of the words “an employee of the City Service.”

There is no recognized standard of professional conduct for city employees as a whole. The “common knowledge” of the members of the city service “sets forth no basis by which an employee may know what ‘conduct’ the agency may treat as ‘unbecoming.’” (Jabola, supra, 125 Cal.App.3d at p. 936 .) Therefore, rule XII(2)(a) is not analogous to the rule at issue in Perea , which permitted discipline for “ ‘conduct unbecoming an officer of *778 the Redwood City Police Department.’” ( 39 Cal.App.3d at p. 941 .) The limitation of the standard in that case to conduct unbecoming a police officer provided, in light of the “common knowledge of members of the particular vocation,” “fair warning of which conduct is prohibited and which permitted.” (Id., at p. 942.)

The majority find that rule XII(2)(a) “provides a sufficiently specific standard” despite its failure to refer to a group of employees as to whom there exists “recognized standards of professional conduct.” (Jabola, supra, 125 Cal.App.3d at p. 935 ; see maj. opn., ante, at p. 769.) They dismiss the rationale of Foothill and Jabola by construing “conduct unbecoming an employee of the City Service” to read “conduct unbecoming a city police officer.” (Maj. opn., ante, at p. 769.) I do not believe that rule XII(2)(a) can be saved by such a construction.

In support of their construction of rule XII(2)(a), the majority cite Bowland v. Municipal Court, supra, 18 Cal.3d 479 (hereafter Bowland), which held that statutory language challenged on vagueness grounds can be examined in light of the facts at hand “so long as that language may be given ‘... & reasonable and practical construction in accordance with the probable intent of the Legislature’ and encompassing the conduct of the defendants.” (Id., at p. 492, citing County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 673 [ 114 Cal.Rptr. 345 , 522 P.2d 1345 ].) Relying on Morrison , the majority speculate that “the city intended that the meaning of ‘conduct unbecoming an employee of the City Service’ would ‘depend upon and thus relate to, the occupation involved’ in a particular case.” (Maj. opn., ante, at p. 769, citing Morrison, supra, 1 Cal.3d at p. 227 .) However, the court in Morrison merely stated that broad language, which was used in statutes governing various professions, was intended to be read in light of the specific vocational group to which the particular statute applied. (Id., at pp. 227-228.) Morrison does not support the majority’s contention that the City of Richmond, in prescribing a single standard of conduct for a broad class of employees, intended instead to prescribe a separate standard for each vocational group within that class. It is equally likely that the City of Richmond intended rule XII(2)(a) to apply to those acts that it deemed “unbecoming” to all city employees regardless of occupation.

In determining whether a statute is unconstitutionally vague, Bowland would permit this court to devise a “practical” and “reasonable” construction of the statutory language consistent with the legislative intent. However, one purpose of requiring precision in administrative regulations of this sort is to give the employee notice of what conduct constitutes grounds for discipline. (See United States v. National Dairy Corp., supra, 372 U.S. at p. 33 [ 9 L.Ed.2d 561, 566 , 83 S.Ct. 594 ]; Morrison, supra, 1 Cal.3d at *779 p. 231 .) Therefore, I would hold that unless the judicial construction is readily apparent from the language of the challenged statute, the statute is unconstitutionally vague because the employee may not be charged with notice that the conduct at issue was prohibited. As this court explained in Bowland , “[n]o important constitutionally protected right is endangered ... by the imprecision inhering in this statute, ... so long as an accused can reasonably be held to understand by the terms of the statute that his conduct is prohibited.” (Bowland, supra, 18 Cal.3d at p. 493 , italics added; cf. Smith v. Goguen, supra, 415 U.S. at p. 580 [ 39 L.Ed.2d at p. 616 ] [which notes “the problems presented by an appellate court’s limiting construction in the very case in which a defendant has been tried under a previously unnarrowed statute”].)

As the majority concede, the plain language of rule XII(2)(a) provided no ascertainable objective standard by which an employee could determine whether his conduct would subject him to discipline. (Maj. opn., ante, at p. 765.) However, the majority find the requisite specificity by construing rule XII(2)(a) to refer to “conduct unbecoming a city police officer,” instead of “conduct unbecoming an employee of the City Service.”

I cannot concur in the majority’s construction of rule XII(2)(a). It is not readily apparent from the plain language of the rule that the unbecoming conduct standard does not apply to city employees as a whole. Accordingly, I would find that rule XII(2)(a) contained no ascertainable standard and could not, therefore, provide notice to appellant that his conduct would be deemed “unbecoming” by the City of Richmond.

I would reverse the judgment of the trial court on the ground that rule XII(2)(a) is unconstitutionally vague.