Perlman v. Municipal Court

ROTHMAN, J. *

I concur because we are bound to follow the authority of the Supreme Court in Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232 [ 163 P.2d 704 ]. 1 In Gospel Army , the Supreme *580 Court found the ordinance at issue herein to be constitutional on its face. 2 Since the rendition of the decision in 1945 by a sharply divided Supreme Court, and even though there have been major developments in the legal principles applicable to protected activity under the First *581 Amendment, Gospel Army has never been questioned or overruled, and as recently as People v. Fogelson (1978) 21 Cal.3d 158 , at page 165 [ 145 Cal.Rptr. 542 , 577 P.2d 677 ], the Supreme Court cited it. 3

Because the thoughtful lead opinion here has explained that Gospel Army is not only binding but correct, I feel obliged to add my view that Gospel Army is binding but probably wrongly decided. 4

In examining the validity of an ordinance “... The crucial factor here is our zealous solicitude for rights falling within the protection of the *582 First Amendment. In considering the constitutionality of ordinances in the category of that involved here “‘precision of regulation must be the touchstone’”. . . and the standards set forth therein must be ‘susceptible of objective measurement’. . . Such precision is exacted because the ‘threat of sanctions may deter almost as potently as the actual application of sanctions.’... A long line of decisions has held unconstitutional ordinances governing the issuance of licenses to conduct First Amendment activities where administrative officials were granted excessive discretion in determining whether to grant or deny the license.” (Burton v. Municipal Court (1968) 68 Cal.2d 684, 690-691 [ 68 Cal.Rptr. 721 , 441 P.2d 281 ].)

In Burton the Supreme Court held unconstitutional an ordinance requiring a police permit, which gave the police commission power to refuse where the business was a public nuisance. In examining the issues, which are, of course, different from those presented by the instant ordinance, the court went on to add: “. .. A fortiori an ordinance is unconstitutional if no standards whatever are set forth to circumscribe the discretion of officials in granting or denying licenses. (Kuntz v. New York (1951) supra, 340 U.S. 290 ; Saia v. New York (1948) 334 U.S. 558 . . . .; Lovell v. Griffin (1938) supra, 303 U.S. 444 .)” (68 Cal.2d at pp. 691-692.)

In People v. Fogelson, supra, 21 Cal.3d 158 , the Supreme Court held unconstitutional a Los Angeles City ordinance requiring a permit to solicit on city property, there the Los Angeles International Airport. The court again set out the applicable rule governing reasonable regulation: “... in the area of First Amendment freedoms, including constitutionally protected forms of solicitation, the touchstone of regulation must be precision—narrowly drawn standards closely related to permissible state interests. ...” (P. 166.)

One such state interest, the court noted was prevention of fraud, but pointed out that: “‘. . . [A]ny procedure which allows licensing officials wide or unbounded discretion in granting or denying permits is constitutionally infirm because it permits them to base their determination on the content of the ideas sought to be expressed.’ (Dillon v. Municipal Court, supra, 4 Cal.3d at pp. 869-870. .. .)” ( 21 Cal.3d at p. 166 .) In holding the ordinance unconstitutional the court said that it had absolutely no standards to guide licensing officials in exercising their discretion to grant or deny applications, and that it gave officials “un *583 bridled power to prohibit constitutionally protected forms of solicitations. ‘Since statutes which accord officials excessive discretion are unconstitutional on their face, a fortiori, those which vest unlimited discretionary power to issue or deny permits to engage in First Amendment activities are unconstitutional.’ (Perrine v. Municipal Court, supra, 5 Cal.3d at p. 662). . ."( 21 Cal.3d at p. 167 .) Finally, the court expressly pointed out that “commercial speech” is not ordinarily protected, unless the sales involve protected literature or speech, or the communication of ideas. ( 21 Cal.3d at p. 165 .)

Turning to the ordinance here in question, section 44.19 details the regulations on licensing of promoters (anyone who solicits “for pecuniary compensation or consideration”). The Supreme Court in Gospel Army found these regulations to be valid even though they allow absolute discretion to refuse a promoter a license if the department is not satisfied as to the good character, reputation and financial responsibility of the promoter. The Supreme Court said that officials had “no discretion to withhold a license if the applicant’s good character and reputation and his financial responsibility are established... . ” (P. 249.) In my view this analysis would not stand scrutiny today. (See Hynes v. Mayor of Oradell, 425 U.S. 610 , fn. at p. 613 [ 48 L.Ed.2d 243, 249 , 96 S.Ct. 1755 ]; see also Schneider v. New Jersey, 308 U.S. 147, 164 [ 84 L.Ed. 155, 166 , 60 S.Ct. 146 ].)

Gospel Army also drew a sharp distinction between charitable solicitations, which might be less protected, and religious solicitations. (See 27 Cal.2d at p. 250 .) As already noted, it is now beyond question that even commercial activities are entitled to the benefit of the First Amendment where the enterprise is engaged in protected activities.

The lead opinion herein points out that the ordinance is confined to “charitable solicitations only” and exempts “solicitations made solely for evangelical, missionary or religious purposes.” (§ 44.16.) They find that this means that the ordinance “does not, on its face, sweep under its control activities such as political canvassing which receive more liberal protection under First Amendment principles.” This is, I think, an incorrect reading of the ordinance, which defines “charitable” as including “the words philanthropic, social service, benevolent, patriotic, either actual or purported.” (§ 44.01.) Thus, by the plain language protected free speech and expression are swept under its control. The fact that the particular defendants in this case are not claiming a religious *584 exemption, or alleging that they were actually engaged in the dissemination of ideas, is insignificant since our focus is on the facial validity of the ordinance, not its application. If the ordinance on its face sweeps in protected expression and it is not narrowly drawn so as to avoid unbridled exercise of official power, it is unconstitutional. (People v. Fogelson, supra, at p. 163 .) Even individuals who annoy airport patrons for money are entitled to the Constitution’s protection from such an ordinance. 5

The lead opinion finds that this city ordinance vests no discretion in the licensing officials: “the Information Cards, once applied for, must issue automatically within ten days.” This statement is based on one in Gospel Army where the Supreme Court explained the information cards under Section 44.03: “... The information cards, which are in effect permits to solicit, are issued automatically upon the filing of the required information and the payment of the four cents for each card. The department is given no authority to withhold such cards when these requirements are met, and we cannot assume that it will abuse its authority in order to withhold them. ...” (Pp. 238-239.) The Supreme Court cited a number of California cases to the effect that no presumption exists that officials will oppress people, and that if officials acted whimsically and arbitrarily, the applicant could take “‘recourse to the courts for relief from such unjust and arbitrary action.’” (P. 239.)

This proposition was questionable when made. The dissent in Gospel Army pointed out that the United States Supreme Court had held that availability of judicial relief did not save an otherwise unconstitutional prior restraint. ( 27 Cal.2d at p. 280 .) (See Cantwell v. Connecticut, 310 U.S. 296, 306 [ 84 L.Ed. 1213, 1219 , 60 S.Ct. 900 , 128 A.L.R. 1352 ].) But, more importantly, the assertion as to this meaning of the ordinance is unsupported by anything in it, and appears to rest on the dubious presumption (or perhaps wishful thinking) that officials will not act arbitrarily. Section 44.03 itself does not mandate that cards issue “automatically,” it merely vests in the department of social service the power: “To issue to all solicitors Information Cards” containing certain details listed therein. (Subd. (d).) Nothing in the ordinance mandates *585 that the information cards be issued within any set time following the filing of a notice of intention to solicit contributions. All the ordinance says is that “at least ten (10) days prior to the beginning of such solicitation” the notice of intention must be filed. Yet no solicitation can take place without first filing this notice of intention (§ 44.05), and without securing an information card (§ 44.12).

A similar vagueness exists in the area of the department’s power to recall information cards. When it receives additional information which “in the opinion of the Department, shall render incorrect any statement” on the information card, section 44.03, subdivision (h), authorizes the department to “recall every such Information Card and amend or correct the same or issue in lieu thereof a new Information Card amended or corrected in accordance with such additional information.” Under such an order the solicitor is obliged to return the recalled information card within 48 hours of receipt of the notice. There is nothing in the ordinance that specifies how long the department can wait to reissue an information card after it has been recalled for additions or corrections, nor is there a procedure to contest the department’s “opinion.” This statutory scheme of unrestricted discretion does not, on its face, appear to be a regulation “with narrow specificity.” (N.A.A.C.P. v. Button (1963) 371 U.S. 415, 433 [ 9 L.Ed.2d 405, 418 , 83 S.Ct. 328 ]; see Hynes v. Mayor of Oradell, supra, 425 U.S. 610, 620 [ 48 L.Ed.2d 243, 252-253 ].)

It should also be noted that Gospel Army premised its statement that the department had no authority to withhold the cards on the condition precedent that the “required information” was filed with the department. Thus, under Gospel Army’s interpretation of the ordinance, the department is given absolute discretion to decide whether the “required information” has been filed, and there exists no procedure for review of that or any other decision of the department or board. Since some official can exercise these powers with no controls, the constitutional prerequisite of narrow specificity is missing.

This sort of failing was the basis upon which the ordinance in Intern. Soc. for Krishna Consc. v. Rochford (7th Cir. 1978), 585 F.2d 263 , 271-273, was held unconstitutional. It was argued that the regulation granted no discretion to issue the license, and that therefore no procedural safeguards were needed. The court said that: “... When the regulations are read as a whole, we find that the possibility of denial of *586 registration exists. It therefore follows that some mode of review must be included. ... If a regulation has the potential to impinge upon First Amendment rights, that regulation must provide for procedural due process....” (Pp. 271-272.) (See Freedman v. Maryland, 380 U.S. 51, 59 [ 13 L.Ed.2d 649, 655 , 85 S.Ct. 734 ].)

The petition of plaintiffs and respondents for a hearing by the Supreme Court was denied February 7, 1980. Newman, J., of the opinion that the petition should be granted.

Assigned by the Chairperson of the Judicial Council.

An inferior court must accept the law as declared by a court of superior jurisdiction. Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ],

The record on appeal contains copies of the ordinance as it existed in 1945 and as it exists today. Comparison of the two ordinances reveals that they are identical except for the minor differences in the sections listed below. These differences cannot justify a conclusion that Gospel Army is inapplicable because of changes in the ordinance.

1945 Ordinance 1979 Ordinance Differences

Section 44.01 44.01 Change in name of endorsing agency in “Promoter” paragraph.

Section 44.02 44.02 In subsection (b) a phrase has been added to not permit the Board to publish investigation of misstatements, deceptions and frauds.

The powers in subsection (c) (d) (e) and (f) have been removed from this section and added to to section 44.03, as subsection (f) (g) (h) and (i) respectively.

Section 44.03 44.03 The Powers of the Department have been expanded by the addition of four subsections from section 44.02 (see above.).

There are a number of changes from “Board” to “Department”, and some changes in numbers of cross referenced sections.

Added subparagraph (j) authorizing the Department to inform the public about charities that expend 1 /2 of their proceeds by a Los Angeles based governing board.

Added subparagraph (k) authorizing the Board to maintain survey of charities in city.

Section 44.06 44.06 Some changes from “Board” to “Department.”

Section 44.09 44.09 Some changes from “Board” to “Department”.

*581 1945 Ordinance 1979 Ordinance Differences

Section 44.13 44.13 The word “Television” added.

Section 44.16 44.16 Some changes from “Board” to “Department”.

Section 44.19 44.19 Some changes from “Board” to “Department”.

Increase in size of Bond in section (3) (a) & (9) (b).

Increase in fees charged to solicitors and promoters in subsections (4), (9) (d) & 9 (f).

44.20 Provisions on endorsement procedures added. These sections were in another part of the Municipal Code in 1945, and were practically identical to the present section. (See Gospel Army , fn. at p. 240.)

Fogelson was decided April 26, 1978, and therefore the trial judge did not have the advantage of this citation when he made his decision on April 3, 1978.

Even when it was decided, two Justices felt it was wrong. In Justice Carter’s dissent he criticized the majority’s view that the collection activities there were not within the religious exemption. He also found that the ordinance was unduly onerous on the would-be charity in the breadth and detail of the information required to get a permit, and the unbridled power over so-called promoters. The effect of its application, he felt, could drive out all but organized institutions, and the ordinance was more than the approved simple regulations of time, place and manner. (27 Cal.2d at pp. 250-276.)

Justice Edmonds’ dissent focused on what he felt was the potential for unjust and arbitrary abuse of power in the ordinance, and was especially burdensome on organizations that were perpetually soliciting funds. He also pointed out that the City could interfere with the solicitation by burdensome information on the information card or by publicizing results of its investigations. (27 Cal.2d at pp. 276-287.)

Justice Carter made this point thusly in his dissent: “That some fraud may escape detection is to be anticipated. This is more or less true in all walks of life despite volumes of protective legislation. But the diversion to wrongful channels of some part of the public contribution to charity is not a major catastrophe when weighed against the cost of protection effected only by carving a large slice from the bill of rights." (Gospel Army, supra, p. 253 .)