# Petition for Writ of Certiorari — McMahon v. Albany Unified School District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1718%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 824 ## Text Supreme Ceurt, U.S. FILED 1) NX 021832 WN 17 2003 | Jn The Supreme Court of the Anited States ¢ DAVID McMAHON, Petitioner, V. ALBANY UNIFIED SCHOOL DISTRICT,. JOE DALE HUDSON, ALAN RIFFER, DIANNE McNENNY, MARSHA SKINNER, and PEGGY THOMSEN, Respondents. 2 7. On Petition For Writ Of Certiorari To The California Court Of Appeal 4 PETITION FOR WRIT OF CERTIORARI 2 Vv WALTER K. PYLE 2039 Shattuck Avenue, Suite 202 Berkeley, CA 94704-1116 (510) 849-4424 Attorney of Record for Petitioner Oe COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED 1. Can the recognized speaker in a meeting deemed to be a public forum be arrested for disrupting the meeting by violating “implicit customs” of the meeting, without first being warned he is in violation of those unwritten practices? Is not a criminal statute which prohibits such ‘conduct too vague to stand up to First Amenament protec- tions? 2. Even if such a warning were given, is not such a statute unconstitutionally vague because it vests virtually complete discvetion in the hands of meeting officials to determine whether the speaker has violated implied customs of the meeting? 3. Does one meeting official’s statement to another school official that the speaker’s conduct is an “absolutely inappropriate” activity, and directing that other official to call the police, sufficiently warn the speaker that he is out of order and subject to arrest unless he ceases his conduct? 4. Does the “clear and present danger” rule apply to prevent the speaker’s arrest under such circumstances? 5. Is an arrest the least restrictive means consistent with free speech to further a government interest in keeping trash from being displayed on the floor of a schoolroom? Would a request to the speaker to conclude his remarks and pick up the trash have been sufficient to further that interest? ‘i TABLE OF CONTENTS Page QUESTIONS PRESENTED. ........scsssccscsosesscsevoecssers i TABLE OF AU THAIS EEO v0 siveinivcssnnconsnesssesesannveorvess Vv OP LEI DAS Wy vikcsscsinininsseiaeiaaien 1 TORING CIE ssissrsisstssncincmemeaminaattie 1 CONSTITUTIONAL PROVISIONS INVOLVED....... 2 STAT U Cab GE VASE BRO bs cauisistenuiaornhingtendekeeronanttubiens 2 STATEMENT OF THE CABS .cccsssessscsvesssevessonrenscensss 3 REASONS FOR GRANTING THE PETITION ......... 7 5 THE DECISION BY THE CALIFORNIA COURT OF APPEAL CHILLS THE RIGHT OF PEOPLE TO SPEAK OUT AT PUBLIC MEETINGS FOR FEAR OF ARREST............... 7 A. McMahon Was Arrested Without a War- rant, Which Fact Made Out a Prima Facie Case of an Unlawful Arrest. The Defen- dants, to Avoid a Directed Verdict, Had to Prove That McMahon Had Actually Com- mitted a Criminal Offense....................cs0008 7 B. As Interpreted by California’s Highest Court in 1970, Penal Code Section 403 Re- quired That Before a Person Exercising First Amendment Rights at a Public Meet- ing Can Be Lawfully Arrested, Meeting Of- ficials Must First Warn the Person He Is in Violation of Meeting Customs and Re- quest Him to Cvase His Conduct................ 8 ill TABLE OF CONTENTS -— Continued Page C. The Decision of the California Court of Appeal Now Permits an Arrest of the Speaker in a Public Fcrum if the Court Determines That It Was “Self-Evident” That His Conduct Was Not Frotected by thee Firat Amenarienit ..........cscsersssecsrsecseses 10 D. The California Court of Appeal Has Sub- stituted a Vague Community Standard in Place of an Objective Standard Against Which Public Speakers Can Measure Be I iisskasihcnsnncsetncveacsbstncsscthiesscenenns 12 E. A Request to a Third Party to Call the Po- lice Is No Substitute for a Warning and Request to the Speaker to Curtail His I srcdak oie cckdvusixtiniegss cecupnvenskpeneineuionienneis 13 F. The California Court of Appeal’s Decision Makes the California Statute Unconstitu- tionally Vague Under the Fourteenth iii el ecaneslalibnidinin 15 Il. THERE WAS NO CLEAR AND PRESENT DANGER WHICH WOULD DISPENSE WITH THE REQUIREMENT THAT THE CHAIR IS- SUE A WARNING AND A REQUEST TO THE SPEAKER. NOR WAS ANY OTHER IMPOR- TANT STATE INTEREST AT STAKE ................ 16 II]. THE RIGHT TO SPEAK FREELY IN A PUB- LIC FORUM IS A FUNDAMENTAL RIGHT. THE COURT OF APPEAL’S OPINION AL- LOWS GOVERNMENTAL BODIES TO EAS- ILY ELIMINATE FIRST AMENDMENT a cscs srinessvisnnevensscnisconenssevonsneesteneens 21 IIIT - Oainsneds eo aha SDT OR Bors oe Noe Rg PES ee ae es RRS App. 25 expression of his views that caused the adjournment, but his dumping of trash in a school cafeteria. As to McMahon’s fifth cause of action, we concluded the trial court did not abuse its discretion in finding that declaratory relief would be inappropriate. The trial court’s conclusion was consistent with its determination that such relief was superfluous to the resolution of the underlying merits already reached. As we stated in our earlier opin- ion: “The chance that the relevant conduct would recur can properly be regarded as remote, thus the grant of relief was unnecessary in the context of litigation the court was simultaneously ending.” (McMahon v. Alan Riffer, et. al., supra, A094883 at p. 7.) Disposition The judgment is affirmed. Corrigan, Acting PJ. We concur: Parrilli, J. Pollak, J. Trial court: Alameda County Superior Court Trial judge: Honorable Kenneth Burr Walter K. Pyle for Appellant and Plaintiff Imai, Tadlock, Keeney & Cordery, LLP, T.G. Tadlock, for Defendants and Respondents. Ea App. 26 Court of Appeal, First Appellate District, Division Three — No. A093980 S113444 IN THE SUPREME COURT OF CALIFORNIA En Banc (Filed Mar. 19, 2003) DAVID MCMAHON, Plaintiff and Appellant, v. ALBANY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. Petition for review DENIED. GEORGE Chief Justice --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1718%3A1. Public record. Not legal advice.