stating that, even in light of a severability clause, “[t]he final [severability] determination depends on whether the remainder ... is complete in itself and would have been adopted by the legislative body had the latter forseen [sic] the partial invalidation of the statute ... or constitutes a completely operative expression of the legislative intent ... [and] are [not] so connected with the rest of the statute as to be inseparable.” (internal citations omitted; ellipses and brackets in original)
How later courts described this case
- stating that, even in light of a severability clause, “[t]he final [severability] determination depends on whether the remainder ... is complete in itself and would have been adopted by the legislative body had the latter forseen [sic] the partial invalidation of the statute ... or constitutes a completely operative expression of the legislative intent ... [and] are [not] so connected with the rest of the statute as to be inseparable.” (internal citations omitted; ellipses and brackets in original)
- holding that “even if the statute following severability is not what the enacting body originally intended, the courts can sustain the statute if severance is mechanically feasible and the legislative body would have preferred such an outcome to total invalidation”
- stating that a court "cannot ... in the exercise of its power to interpret, rewrite the statute" (internal quotations omitted)
- declining to enjoin sign ordinance’s application to commercial speech because of the "serious constitutional problems” presented by such a remedy (citing Brennan’s concurrence in Metromedia, 453 U.S. at 536-39, 101 S.Ct. 2882
Written by the judges who cited it.
The opinion
KAUS, J.
I respectfully dissent.
As the majority notes, in view of the United States Supreme Court decision in this case (Metromedia, Inc. v. San Diego (1981) 453 U.S. 490 [ 69 L.Ed.2d 800 , 101 S.Ct. 2882 ]), the sole question before us is whether the San Diego billboard ordinance at issue should be invalidated in its entirety or should be construed—in order to preserve its constitutionality—as prohibiting only commercial off-site billboards. In choosing total invalidation, the majority airily dismisses in footnote 2 *192 the most important factor in the case: in July 1981—after, and in direct response to, the United States Supreme Court decision—the City of San Diego enacted an ordinance making clear its intent that the billboard ordinance be preserved insofar as constitutionally permissible, even if that ordinance’s ban on noncommercial as well as commercial off-site billboards cannot stand. It seems to me that proper deference to the city’s legislative prerogative in choosing between alternative, constitutionally permissible billboard regulations requires that we give effect to this explicit, legislatively expressed choice.
The error in the majority’s result is perhaps traceable to its statement that “[i]t is not entirely clear whether the court has the power to construe a law contrary to the legislative intent at the time it was enacted, even if that construction is necessary to salvage what can be saved of the legislative purpose.” (Ante, p. 189.) In an accompanying footnote, the majority explains that it has “found only one case which is even arguably on point,” an 1889 decision—People v. Perry (1889) 79 Cal. 105 [ 21 P. 423 ]—in which the court stated that “we know of no precedent for holding that a clause of a statute, which as enacted is unconstitutional, may be changed in meaning in order to give it some operation, when admittedly it cannot operate as the Legislature intended.” ( 79 Cal. at p. 115 .)
Whether or not there was such precedent at the time of the Perry decision, today there are literally dozens of cases that make it quite clear that courts are fully authorized to undertake precisely this kind of constitutionally compelled editing and interpreting in order to uphold a legislative scheme insofar as is constitutionally permissible.
A few examples should illustrate the point. In Pryor v. Municipal Court (1979) 25 Cal.3d 238 [ 158 Cal.Rptr. 330 , 599 P.2d 636 ], we addressed a constitutional challenge to Penal Code section 647, subdivision (a), which imposed penal sanctions against anyone who “solicits ... or ... engages in lewd or dissolute conduct in any public place .... ” After a comprehensive analysis of the statutory language, legislative history and judicial application of the provision, we concluded that the statute as written was unconstitutionally vague, but then—in order to save its constitutionality—we undertook a substantial revision of the statutory language, “arriving] at the following construction of section 647, subdivision (a): The terms ‘lewd’ and ‘dissolute’ in this section are synonymous, and refer to conduct which involves the touching of the genitals, buttocks or female breast for the purpose of sexual arousal,
*193 gratification, annoyance or offense, if the actor knows or should know of the presence of persons who may be offended by his conduct. The statute prohibits such conduct only if it occurs in any public place or in any place open to the public or exposed to public view; it further prohibits the solicitation of such conduct to be performed in any public place or in any place open to the public or exposed to public view.” (25 Cal.3d at pp. 256-257.) In formulating this interpretation, we did not suggest that our detailed construction conformed precisely to the statute that the original legislators intended to enact, but instead we acted on our judgment that—given the relevant constitutional constraints—the Legislature would have preferred the more specific and narrowly drawn construction than no statute whatsoever.
In re Kay (1970) 1 Cal.3d 930 [ 83 Cal.Rptr. 686 , 464 P.2d 142 ] similarly demonstrates the propriety of this type of judicial construction. The provision at issue in Kay was Penal Code section 403, which provided that “[e]very person who, without authority of law, wilfully disturbs or breaks up any assembly or meeting ... is guilty of a misdemeanor.” In that case, the statute had been invoked against a group of vocal demonstrators at an outdoor political rally, and we pointed out that under the First Amendment if section 403 “were literally applied with the breadth of coverage that its terms could encompass, the statute would be constitutionally overbroad and could not stand.” ( 1 Cal.3d at p. 941 .) Rather than invalidate the statute, however, “[t]o effectuate section 403 within constitutional limits we interpreted] it to require the following showing to establish its transgression: that the defendant substantially impaired the conduct of the meeting by intentionally committing acts in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known.” (Id., at p. 943.) As in Pryor, we did not suggest that this construction precisely coincided with the original legislative intent, but nonetheless we adopted this interpretation because it was more in keeping with the legislative will than striking down the statute completely.
A final example makes the point in perhaps the clearest terms possible. In In re Edgar M. (1975) 14 Cal.3d 727 [ 122 Cal.Rptr. 574 , 537 P.2d 406 ], we passed on a constitutional challenge to Welfare and Institutions Code section 558, which provided in part that if a juvenile defendant’s application for rehearing from a referee’s decision “is not granted within 20 days following the date of its receipt, it shall be deemed denied.” In a unanimous decision by former Chief Justice *194 Wright, the court concluded that by giving binding effect to a referee’s decision without requiring some action by the trial court, this portion of the statute violated the constitutional restriction on a referee’s powers. We then turned to the question of remedy, noting that the proper approach was to seek “a construction [of section 558] that will eliminate this invalid application and yet preserve the parts and applications of the statute which do not violate the constitutional provisions and which the Legislature would have intended to put into effect if it had foreseen the constitutional restriction.” (Italics added; 14 Cal.3d at p. 736 .) After considering the possibility of simply eliminating the offending sentences altogether, we rejected that solution, explaining: “We believe that the legislative intent will be more fully effectuated within the constitutional restraint by altering the operative effect of these sentences rather than striking them altogether.... [W]e conclude that we best harmonize the statutory purpose with the constitutional command by requiring that applications which would be ‘deemed denied’ under the section’s literal wording be instead granted as of right . ... ” (Italics added; id., at p. 737.) It is obvious, of course, that this interpretation did not conform to the legislative intent at the time the measure was enacted, but we adopted that reading because we felt that it was the interpretation “which the Legislature would have intended to put into effect if it had foreseen the constitutional restriction.” (Id., at p. 736.)
Ordinarily, when a court concludes that a legislative enactment may not be constitutionally applied in the form that it is enacted, it will have no direct evidence as to what the legislative body would have intended “if it had foreseen the constitutional restriction;” in those circumstances—as in Pryor, Kay and Edgar M.—a court has no alternative but to use its best judgment in assessing the probable legislative intent. In the present case, however, we have no need to guess as to the legislative body’s probable intent. As the majority itself recognizes {ante, p. 182, fn. 2), in July 1981—just a few weeks after, and in direct response to, the United States Supreme Court decision in this case—the City of San Diego enacted an emergency interim billboard ordinance which, inter alia, specifically provided that “[i]n the event that further court proceedings in Metromedia et al. v. City of San Diego et al., result in Ordinance No. 10795 (N.S.) [the ordinance at issue here] being held valid and constitutional in whole or in part then the provisions of Ordinance No. 10795 shall prevail and remain applicable unless and until the City Council expressly repeals Ordinance No. 10795 (N.S.).” (Italics added.) Inasmuch as the United States Supreme Court decision which was before the San Diego City Council when it enacted this new *195 ordinance made it clear that the earlier ordinance could be sustained only “by limiting its reach to commercial speech” (435 U.S. at pp. 521-522, fn. 26 [ 69 L.Ed.2d at p. 824 ]), the quoted portion of the July 1981 ordinance can only mean that the city prefers to preserve its old ordinance even in truncated form, rather than rely solely on its newly enacted interim time, place and manner regulations.
In declining to adopt the limiting construction suggested by the United States Supreme Court to preserve the ordinance’s constitutionality, the majority surmises that a total ban of all off-site commercial billboards may not achieve the city’s ultimate purpose of removal of billboard structures; it reasons that “[s]ince the effect of such an ordinance would depend on the extent to which persons were willing to purchase billboard space for noncommercial advertising, it would offer no assurance that a substantial number of billboards, or any particular billboard, would be removed, or that the erection of new billboards would be inhibited.” (Ante, p. 190.) The city may well have concluded, however, that in light of its evaluation of the economics of the situation, a total ban on off-site commercial billboards will result in fewer billboard structures than a time, place or manner regulation; if off-site billboard space cannot generate income from commercial advertising, the owners of the billboard structures may well decide that it is not profitable to maintain them for the relatively few, noncommercial billboard messages. In any event, even if the majority is correct in its assessment that a time, place and manner regulation applicable to all off-site billboards would be more effective than a citywide ban applicable only to commercial off-site billboards, the choice between alternative, constitutionally permissible regulatory schemes is, of course, a policy matter for the city, not this court. 1
*196 Since the city has made it clear that it prefers to retain this ordinance to the extent constitutionally permissible, I believe that we should construe the ordinance’s prohibition on off-site billboards as applicable only to commercial billboards. As so interpreted, the ordinance is constitutional and should be upheld.
Reynoso, J., concurred.
Furthermore, the majority appears to overlook the fact that even if the city maintains a total ban on off-site commercial billboards, there is no reason why it could not also enact reasonable time, place and manner regulations applicable to off-site noncommercial billboards.
The majority additionally indicates that an interpretation which limits the ordinance’s off-site ban to commercial billboards would make the amortization and removal provisions of the ordinance difficult to apply. (Ante, p. 190.) Although the question of the application of these provisions to particular billboard structures is premature, I do not see any insurmountable obstacle. If the ordinance is construed to make off-site commercial use impermissible, the amortization provision could be applied by permitting a billboard owner to use a billboard structure for otherwise impermissible commercial messages for the length of the appropriate amortization period. Once the owner has exhausted that period, a particular structure could only be used for noncommercial purposes; if it is not so used, removal could be ordered.