*1 No. 23714. Mar. [S.F. 1979.] GOLDIN,
MARVIN Petitioner, PUBLIC COMMISSION, UTILITIES Respondent; GENERAL TELEPHONE COMPANY OF CALIFORNIA, Real in Interest. Party
Counsel J.
Paul for Petitioner. Fitzgerald Kerr, K. for E. Hector Anninos Scott Carter
Janice Respondent. Winkler, General, J. Jack R. Chief Assistant Evelle Younger, Attorney General, General, Kremer, Assistant M. Daniel J. Attorney Jay Attorney General, Meth, as Amici Curiae Alan on Bloom and S. Attorneys Deputy behalf Respondent. in Interest. for Real
No Party appearance
Opinion v. Public court, the case of Sokol
MANUEL, J. Twelve this ago years 673, 418 P.2d Cal.2d Utilities Commission (1966) Cal.Rptr. rule the then struck down on constitutional 265], existing grounds used for discontinuance service illegal purposes announced must meet. the standard which future rule “[WJhatever held, devised,” “must at a minimum is hereafter we new procedure to secure the termina obtain authorization police prior require have tribunal of service tion they by satisfying impartial probable to a before a act, in a manner proceeding cause reasonably comparable addition, after to obtain a search warrant. In service is magistrate afforded the the subscriber must terminated promptly opportunity and to secure restoration police challenge allegations sub these measures would A provide service. incorporating procedure the enforcement of without to the subscriber hindering stantial protection 256.) Cal.2d laws.” (65 p. [the] *8 the this decision Public Utilities Commission (Commission)
Following further directed the of undertook toward a rule proceedings development rule, consistent with the aforesaid The result standard. was the present 31,1 as known rule of which are set forth in the provisions margin.2 rule 31 be service shall refused or Generally speaking, provides disconnected the Commission from authorized law upon receipt by any a enforcement official of a “that signed writing by magistrate finding cause exists to believe the use made or to be made of the probable law, service or that the service is or tois be used as prohibited by being or to violate or to assist in the instrumentality, directly indirectly, violation of law.” The or subscriber action any person aggrieved by taken to this standard is to receive immediate notice and has the pursuant to file a with the Commission in right which he immediately complaint interim relief on the this may request pending proceedings complaint; shall be the exclusive concerned law enforcement remedy. Any agency have the to notice of shall and the to full right any hearings right therein It role of shall bear the twin participation prosecutor. of burden violation of the rule and of the Commis- proving persuading sion that the service should be refused or not restored. Each application contract or communications service is deemed to contain the rule, and all for service to are deemed have provisions applicants consented to its provisions. R, 1Schedule California Public Utilities No. D Commission & Advice Letter No. on “A” of
based Commission Decision No. Appendix issued December 1966. 2“1. communications Any under the of this utility operating Commission jurisdiction shall refuse service to a new and shall disconnect service to a applicant, existing subscriber, from authorized law upon receipt any official enforcement aof agency writing, signed by as magistrate, Penal Code 807 and defined-by Sections finding cause exists to believe that probable the use made or to be made the service is law, or that the prohibited by service is or is to being be used as an instrumentality, or to violate or to directly indirectly, assist in the violation law. “2. Any person aggrieved by action taken or any threatened to be taken to pursuant this rule shall have the to file right with the complaint Commission and include therein a for interim relief. The request rule remedy provided by this shall be exclusive. No other action at law or in shall accrue equity against communications any utility of, of, because to or as a result matter or thing done or threatened to be done pursuant rule. this provisions “3. If communications facilities have been disconnected law physically enforcement located, disconnection, where officials at without premises central office and if there is to the not communications presented written of a utility finding magistrate, rule, of this then written paragraph upon the subscriber the specified request shall communications restore such service. utility promptly “4. concerned law Any enforcement shall have the agency right Commission notice rule, held Commission 2 of this any hearing and shall pursuant paragraph therein, have the and to evidence and right participate including right argument present and cross-examine Such law shall witnesses. enforcement present agency notices entitled receive all and orders issued such and shall copies proceedings *9 attack, on an extensive review we confront In the instant proceeding in 31 and its constitutional as well other rule as grounds, application upon below, that this we have concluded forth reasons to be set case. For this be We must attack, the here in of circumstances rejected. presented, light of Commission. the and decision the affirm order
I of Los 1975 the Sheriff’s In the of Angeles County Department spring an Los instituted the Police City pf Angeles Department was of that the business of prostitution indicating complaints investigation and related carried on on an outcall basis parlors through massage being which continued the of this In course businesses. investigation, through information them-to the discovered officers of said leading agencies as certain businesses believe by petitioner operated for the indicated illicit in fact used were services being answering of the Los 7, 1977, E. Waters March On Angeles Judge Mary purpose. to be of the service is the use made or made (1) the burden of have both proving law, used an or is to be as instrumentality, or that the service is being prohibited law, of the be refused or burden to in the violation or to violate or assist indirectly, directly of restored. should not be that the service should Commission persuading in of accordance The refusal or disconnection service “5. utility, immediately upon rule, such writing 1 of this or subscriber with refusal shall paragraph notify applicant or been made a a law enforcement request disconnection has pursuant rule shall with notice a of this include said agency, naming agency, copy together with a statement that the or information and subscriber assistance applicant may request at its from Commission San Francisco or Los office Angeles concerning any provision rule. of this At the of service “6. fifteen after refusal or disconnection of days expiration pursuant rule, subscriber, I of this written of or upon paragraph utility, request applicant agency or restore such unless the law shall shall service enforcement concerned provide notified or have its to such restoration of utility writing provisions objection service, in event in a which service or restored only provided complaint At such of this rule. the time notice pursuant giving any proceeding paragraph a the law enforcement shall mail or deliver thereof to the the objection, agency copy or be construed to subscriber. this shall Nothing in a preclude applicant paragraph 2 of this of interim relief initiated rule. granting proceeding pursuant paragraph service, law, shall be “7. Each contract for communications deemed to by operation a rule. shall be deemed to be provisions part contain this Such provisions shall be deemed have for communications service. for service Applicants application for the such furnishing to the of this rule as a consideration consented service. provisions service, herein, a to communications The term used includes subscriber “8. as ‘person,’ association, service, a a copartnership, for such corporation, company, an applicant subdivision, officer, a and an individual. governmental agency, public political herein, used includes a telephone corpora- The term ‘communications as utility,’ “9. 1 of in Division the California Public and a defined tion’ telegraph corporation,’ Code.” Utilities *10 Court, been with an extensive affidavit and Municipal having presented information, other materials this a document entitled reflecting signed of Probable Cause” which indicated the existence of “Finding probable cause to believe that certain numbers listed in the affidavit and telephone located at two addresses within the utilized for county being “[were] This document was served the real illegal purposes.” duly party upon General interest of and California on (General), Telephone Company 11, 1977, March the the terminated service with company telephone to 39 of the indicated which numbers as to General was respect telephone the and was the subscriber. supplier petitioner filed a with the
On March Commission complaint inter alia that he answer- which operated legitimate alleged business and had not used the for service ing subject telephones asserted that rule its and herein were illegal purpose, application void, and unconstitutional and an order General requested directing or, alternative, restore service in the interim relief immediately grant the conclusion of on the Pursuant pending hearings complaint. A of rule the Commission notified the District of paragraph Attorney sheriff, Los the and the Los Chief of Angeles County, county Angeles date, Police of the of and the time and filing complaint place intervene, All of these filed and an answer on behalf hearing. petitions who, alia, of the interveners was filed the district inter by attorney sought an order for interim relief. denying request on held interveners, were at which the
Hearings petitioner’s complaint over were evidence act as petitioner’s objection, produce permitted officer, interveners, The on of motion prosecutors. hearing quashed the attendance and At Waters. subpoena compelling testimony Judge the conclusion of the officer ruled hearings hearing valid, authorized rule were that such by procedures legal followed, had here been sufficient basis existed procedures cause, and that the for interim should relief finding probable request be denied.
The of interim relief was then submitted to full Commis- question decision, 5, 1977, on sion for the Commission issued an order April such relief “to undue business our granting prevent any hardship pending final determination.” It was further ordered that the restoration of service on an interim basis should be to the of reconnection subject payment charges by petitioner. 26, 1977,
On the Commission issued its final decision. It therein July found and concluded inter alia that of rule 31 were provisions with the set forth this court consistent in Sokol and requirements law, with of due moreover were “consistent the requirements process laws, and the freedom right speech, equal protection States Constitutions and other the California and United laws required thereto”; rule 31 been that the had with complied provisions pertinent *11 had “satisfied their burden of and that the interveners in all respects; Rule 31.” It found and as of further required by proof paragraph service used inter alia that was concluded telephone during petitioner’s in the in and to assist the violation of “directly indirectly, period question law, wit, to of the Section the Penal Code or in 647(b) [soliciting engaging acts of It was the ordered that interim relief prostitution].” previously terminated, should be and that the General and Pacific Tele- granted should thereafter “refuse (Pacific)3 new phone Telegraph Company business service to or in which he has financial or [petitioner] any entity control, California, at location in without further order of managerial this Commission.”4 the for vacation of order interim
Subsequent petitions terminating relief and for were denied. We rehearing granted petitioner’s application to this court for a review to writ of in order examine rule 31 and its of this recent decisions of court and United States light application Court. Supreme
II evidence extensive A brief statement the substance relatively will suffice for our the Commission before purposes. presented on of the interveners. evidence behalf male officers Twenty gave police these, call to that he had a testified essence Of each placed had obtained from a number which he petitioner assigned or outcall nude advertisement offering massage pictorial newspaper services; result the call a woman was that as a modelling dispatched at hotel accommodations where the officer was and arrived or motel located; or that after nude modelling stating price massage that she herself received small $40) service ($35 indicating only was to extended to as well 3The Commission indicated that Pacific prohibition two Southern area.” are “coterminous utilities California to General because for with to the rehearing was ordered that respect 4It also petitioner’s application interim relief be denied. decision granting thereof, ($5 $10) woman the 18 portion (in cases detailed) offered to nature, various acts of a sexual sexual perform including intercourse, a sum $40 $100 from over and above the cost ranging service; of the advertised and that in these cases woman was arrested for violation of Penal Code section subdivision thereupon (b). officer,
A interveners, female also for the testified in police appearing essence she a number which she telephoned assigned petitioner had obtained from a advertisement which stated newspaper “sexy $500 beautiful wanted for outcall week girls massage, guaranteed”; she was directed to and did meet a restaurant petitioner subsequently to discuss the indicated that in the course of the employment; ensuing conversation indicated that he was the of the service operator and made several comments in the record) which (the specifics appear and intent his that of service was indicating purpose providing *12 contacts for that also that if the indicated witness prostitutes; petitioner arrested; were she would be fired if that further employed indicated that to and as a condition of she would be prior employment come to first his and have sexual intercourse with required apartment him; and that it was further stated that the apartment proceedings would in order to make sure that witness was not a taped The same witness also testified that she was policewoman. present during the execution aof search warrant at that while petitioner’s apartment; there she answered the when calls telephones they rang; among received were several from women to be out sent on calls or requesting cleared the identification of clients reporting having at locations which had been and that two were of these directed to they dispatched; where addresses officers were located and both were police subsequently arrested.
The of sheriff testified that while in deputy charge investigation of a search warrant at process serving executing petitioner’s business here in (where were premises telephones question he seized several located) items all of which were admitted property, into evidence before the examiner and the exhibits before appear among notes, this court. these items were various lists some of which Among to relate to for such notations appear applications employment, including name, address, not number but also only applicant’s telephone dimensions, information such and hair color as height, weight, physical which, well witness, as comments in the indicated the opinion character of sexual in which the would or would activity not applicant sheet, Other notes included one entitled “heat engage. suspected police officers,” list of names. containing alphabetical
Also admitted into a evidence was selection advertise- newspaper ments one or more of the 39 General numbers bearing subscribed Some of these advertisements contained by petitioner. which, do semi-nude women and contain while we pictures language here, not it that sensual more repeat suggested pleasures graphically intimate than or offered. visual stimulation were massage behalf,
Petitioner did not in his own but he offered three testify first, witnesses. The testified in essence that she woman years age, and, had been in her as waitress after unhappy previous employment from with her about hearing job petitioner, stepmother opportunities her interview made application during employment employment; had been on the she told that if she act prostitution job performed any fired; she would be of her she as a part application signed document fact document her this (which indicating understanding hours, the exhibits that her shift was herein); appears among working calls; $50 which she serviced four that she during normally averaged per $5 call which she received night, comprising per plus tips given by customers; customers, her, that her what told covered the judged by they full and most of them wanted to talk and range professions, merely lonesome; to be that she refused to services for more appeared perform *13 time, than one at a did not “dominant person perform massage,” customer, abuse of the and would not consisting physical massage area. The witness also genital explained telephone dispatch procedure which she was in contact with She her customers by put by petitioner. officers, indicated that she never services for known her performed police friends her she stated that advised having against’it. Finally, although of her some friends had solicited and committed while prostitution she had never done so. employed by petitioner,
Petitioner’s second witness was one his She telephone dispatchers. indicated that she had also other services for such as performed and hiring firing employees, booking appointments keeping daily detail, business records. she dispatch procedure Explaining offered, whether were indicated callers sexual services many inquired when that occurred and if the but she merely hung telephone, up not called back she would state that such service was available. person did, however, would She inform callers that masseuses and models accept waitresses, bellmen, or masseurs would. She further tips, just explained certain that were taken for the of the women precautions safety a call woman to service after arrival at employees, including by location, the customer’s a call to the location after an dispatcher when the service should have been appropriate period completed, occasional calls to the situations. She also police emergency explained the use of certain of the items of in evidence which had been property seized, with which the location of various including map pins by of, was track and of the various lists of undesirable employees kept callers, who and those have hurt police, pranksters, including physically Police, stated, she were avoided because several employees. employees had arrested without cause when sent to a complained being police services, officer. The witness also so-called “dominant” or those explained customer; dominance,” abuse of the she indicated that involving “light abuse, or verbal was but involving bondage light physical provided, dominance,” and other activities “English involving whipping severe was not. She also stated that she knows of no causing pain, instance wherein has solicited act of but any employee prostitution, that she knows of occasions wherein have been arrested for employees so; in all cases in which an to a doing essentially employee dispatched officer, the witness is arrested and police explained, employee goes indicated, however, She also that seven or were jail. eight girls year terminated for solicitation.
Petitioner’s final witness was an who had been arrested in employee one of the cases earlier testified to officers. She recounted the police event and indicated that she had not on solicited an act of prostitution occasion in she was arrested therefor. Her question, although testimony in these conflicted with that of the officer involved. respects
Ill above, the As indicated Commission found and concluded on the *14 basis of the evidence that service had foregoing petitioner’s telephone been used and to assist during period question “directly indirectly, law, wit, in the violation of the Section of the Penal Code.” 647(b) This not, view, determination is in our to review this court in the subject instant Our of review is delineated in 1757 section proceeding. scope the Public Utilities Code as “. . . follows: The review shall not be extended further than determine whether the commission has regularly its a determination of whether the order or pursued authority, including decision under review violates of the under the any right Constitution of the United States or of this State. The findings [If]
653 shall of fact shall be final and of the commission on conclusions questions Such in this article. to review not be questions subject except provided and conclusions of and the of fact shall include ultimate facts findings The on and discrimination.” commission reasonableness provisions on code, section 1760 of the same judgment authorizing independent decision is in which an order or the law and the facts in cases challenged own authorize this court to substitute its on constitutional do not grounds, before the Commis as to the to be accorded evidence judgment weight Util. or the made it. v. Public sion factual (Huntley purely findings 605, 442 67, 71 P.2d Tel. 685]; Com. Cal.2d (1968) Cal.Rptr. [69 Pacific Tel. Co. v. Public Util. Com. Cal.2d & (1965) Cal.Rptr. 401 P.2d for the of this we proceeding Accordingly purposes accept Commission, of the which we conclude to be finding amply that the here in were used supported, telephones question by petitioner assist, in the violation of section directly indirectly, provisions 647, subdivision of the Penal Code. We to address ourselves (b) proceed to the substantive contentions raised.
IV in our advanced The numerous contentions may legal by petitioner contentions view be in three questioning general categories: placed itself, its of the rule contentions questioning application validity case, in the the instant contentions asserting irregularities the contentions in each of these Commission’s decision. We address to the first our attention together, turning question categories of the rule viewed on its face. validity Jurisdiction
(a) It is first asserted that the decision of the Court of Mason v. Appeal Western Union Co. (1975) Telegraph Cal.App.3d Cal.Rptr. 53] casts den.) serious doubt Commission’s discontin (hg. power upon ue service for use thereof. We do not so read the Mason illegal case, which in our view holds no more than that a telegraph company not be held liable for to be may civilly sending message alleged libelous, within the set forth in such communication falling privilege Indeed the 3. its Civil Code section subdivision opinion, through discussion of Public Utilities Code section citation and strongly deemed to be that such service be refused messages implies *15 ... or “calculated instigate encourage perpetration act.” 7904.) unlawful (§
Petitioner’s contention the clear of our wholly ignores implication decision, Sokol wherein we indicated that the Commission rule although there in discontinue utility question—which permitted summarily service without without authorization and provision prompt challenge the subscriber—could not withstand constitutional by scrutiny, proce- dure which remedied deficiencies those would indeed properly pass constitutional muster and within would lie of the jurisdiction Commission to and enforce. promulgate Free
(b) speech on certain in our decision, Sokol
Strongly relying
language
contends that the restraint on communication effected
rule
by
31 affects his
to free
under the First Amendment.
In the
rights
speech
indicated
we stated: “It
. . .
that the disconnection
language
significant
not
the subscriber of the
value
telephones
only may deprive
monetary
venture,
of his economic
but
in such circumstances denies him an
essential means of communication for which there is no effective
Hence,
substitute.
this restraint on communication
the subscriber also
by
affects his
of free
the First Amendment of
right
speech
guaranteed by
the federal Constitution. ‘Inasmuch as the
of free
rights
speech
press
are worthless without an effective means of
expression,
guarantee
extends both to the content of the communication and the means
for its
(Weaver
dissemination.’
v. Jordan
64 Cal.2d
employed
241-242
411 P.2d
Cal.2d
289].)” (65
Cal.Rptr.
255.)
at p.
We
the invitation of
curiae
amicus
to reexamine this
in
accept
language
of certain
decisions of the
Court of the United
light
intervening
Supreme
States. The first and most
of these
our view is that in
significant
Co. v. Human Rel. Comm’n
655
The
court affirmed.
its attention
to the
high
Addressing
initially
so-called “commercial
doctrine first set forth in Valentine v.
speech”
316
Chrestensen
U.S. 52
62
L.Ed.
S.Ct.
which
(under
[86
920]
commercial”
is withdrawn from First Amendment
“purely
speech
that certain inroads had been
on
made
protection)
observing
doctrine
cases
commercial
by subsequent
involving politically hortatory
New York Times
v.Co.
Sullivan
The court’s to this is to the high response suggestion peculiarly apposite facts before us: “Whatever the merits of this contention be in other contexts, it is Discrimination in this case. is unpersuasive employment not commercial it is commercial under the only activity, illegal activity Ordinance. We have no doubt that a could be newspaper constitutionally forbidden to a want ad a sale of narcotics or publish proposing soliciting Nor would the result be different if the prostitutes. nature of the transaction were indicated under columns by placement captioned ‘Narcotics for Sale’ and ‘Prostitutes Wanted’ rather than stated within the four corners of the advertisement.” U.S. at (413 L.Ed.2d at p. [37 678-679]; fn. omitted.) In pp. court stated: First summaiy high “Any Amendment interest which be served might by advertising ordinary commercial and which proposal might outweigh arguably governmental interest is when absent the commercial supporting regulation altogether is and the on restriction activity incidental to a illegal advertising itself valid limitation on economic at (Id, L.Ed.2d at activity.” p. [37 italics court 679]; added.) The went on to conclude that no p. prior restraint on was here involved because the order in expression question “does not (Id, endanger arguably protected speech.” p.
L.Ed.2d at p.
Also relevant our determination is the case of Va. Bd. v. Pharmacy Va. Consumer Council 425 U.S. 748 96 S.Ct. Court, There the 1817], with a case for Supreme presented proper doctrine, reexamination of the “commercial held speech” Virginia statute from forbidding pharmacists advertising prices prescription affected within the drugs First invalidly speech protection advertiser even the interest of the and Fourteenth Amendments though *17 656 clear, however, The made its
was a
economic one.5
court
purely
was
to
whose
matter
did not extend
commercial
holding
speech
subject
claim,”
noted,
the
“that
the
“There is no
court
transaction.
illegal
in
advertisements
are themselves
the forbidden
transactions proposed
Comm’n.,
v.
Cf.
Co. Human Relations
Press
any way.
Pittsburgh
illegal
772
L.Ed.2d
376
. . .
U.S. at
at
365].)
413 U.S.
.” (425
(1973)
p.
p.
[48
the
a
is at
is whether
State
“What
issue
may completely suppress
truthful
information about
dissemination
entirely
concededly
lawful
and its
its disseminators
that information’s effect
fearful of
upon
activity,
the
to this
answer
other
we conclude
Reserving
questions,
recipients.
at
italics
365];
773
L.Ed.2d
is in the
at
p.
one
(Id.,
p.
negative.”
[48
International
added;
Services
fn.
also
v.
(See
omitted.)
Carey
Population
675, 694-696,
678,
[37 telephone of the character herein involved is not within the protected speech of the Thus, it First Amendment. is to total meaning subject suppression means an otherwise valid limitation. Bates v. (See State Bar of Arizona, 433 U.S. at L.Ed.2d at 836].)7 supra, p. p.
We are thus to the second before us: Is the brought major question limitation here involved an valid” “otherwise one? particular Petitioner demonstrate that their constitutionally conduct was specific (433 protected. U.S. 379-381 pp. L.Ed.2d at 832-834].) pp. 7While it is one to that thing ’commercial to an say purely speech relating illegal
transaction is not to entitled First Amendment and be under protection may suppressed otherwise valid of course it regulations, another to that a means of quite suggest business communication used for the discussion transactions as well as legal illegal transactions discontinued because the latter use. In this case the Commission indicated, however, record, on the basis of abundant evidence in the that the 39 business lines here were an and question massage nude adjunct petitioner’s business, referral and that as such used modelling were and they “continually circumstances, ... . to facilitate . . activities.” In these systematically and prostitution follow, reasons be stated we discussion to decline to hold on this record that action, lawful, the Commission’s if it was otherwise was forbidden on a constitutional basis because mere of occasional use of lines. legitimate possibility subject not, that it is and it is other (1) that vague
argues urging among things overbroad, without it taking property operates permit law, with due its are inconsistent process provisions Sokol, set forth us in requirements proceedings to its were with take not in accordance law. We leading up adoption up each these in order. contentions and overbreadth.
(c) Vagueness Petitioner raises a number of to the effect that rule 31 is arguments unconstitutionally great imaginative vague overbroad—going out of abuse and lengths capricious application point possibilities which terms. we which are inherent in its While recognize dangers *19 adverts, it he be we not believe that lies in for reasons to stated below do his to raise mouth them. to the matter of
With heavy vagueness petitioner places respect 544 402 U.S. the case Palmer v. Euclid (1971) reliance on of [29 City of Court, in a short 98, L.Ed.2d 91 S.Ct. wherein 1563], Supreme per on ordinance” down curiam struck “suspicious person city’s opinion, “ fair of that it to ‘a failed ordinary intelligence ground give person .’ . . . United States v. is forbidden notice that his conduct contemplated Harriss, 612, 545 L.Ed.2d at U.S. 617 at 100].) 347 (1954).” (Id., p. p. [29 one forbidden the ordinance He notes that element the conduct there that a be without visible or “lawful” in was question person business, here as the rule in discontinuance of question just permits violate assist service to one his “to or to violation using considerations, of the He fails to note two however. law.” other important Palmer, as the The first is that ordinance in question concurring clear, not struck as of Justice Stewart makes was down being opinion the court. rather to the case before on its face but as vague applied out, whatsoever,” the nois opinion pointed suggestion majority “[T]here local, state, or federal “that did was what unlawful under [appellant] law. If conduct his nevertheless satisfied being-without- ordinance, the state as visible-or-lawful-business element our view to him held, it is unreasonable charge courts must have quite of the ordinance. The be the construction would with notice such be held no man shall is that criminally responsible underlying principle understand be he could not for conduct which reasonably ” Here, on the other 546 L.Ed.2d at at (Id., p. proscribed.’ p. [29 out, as well as the hand, conduct conduct we have petitioner’s pointed unlawful, both were which was in the business of he facilitating
659
so.
he cannot be
heard
it is
clearly
Accordingly,
complain
unreasonable
him with notice that the rule would be construed
charge
to include his conduct. As the court said in
v.
Broadrick Oklahoma (1973)
601,
413
830, 837-838,
U.S.
93 S.Ct.
page
[37
2908]:
if the outermost
boundaries
regulation]
imprecise,
“[E]ven
[the
here,
such
has little relevance
where
conduct
uncertainty
appellants’
,”8
falls
within
the ‘hard core’
. . .
squarely
proscriptions
[its]
it is to be
out that Palmer involved an ordinance
Secondly,
pointed
violation,
whose
unlike that of the rule here in
resulted in the
question,
assessment of criminal
enactments outside the
penalties. Although
criminal area have
been
on
occasionally
subjected
scrutiny
grounds
in cases
vagueness—especially
involving
right
practice
recognized
v.
Morrison
State
(see,
Board Education
1 Cal.3d
profession
e.g.,
(1969)
220-233
461 P.2d
Hall v.
375];
Bureau
Cal.Rptr.
[82
490-495
Agencies
Employment
Cal.App.3d
Cal.Rptr.
[138
v.
725];
Goldberg Barger
Cal.App.3d
Cal.Rptr.
827];
State Board
Medical Examiners
McMurtry
760, 766-773
or
910]),
the exercise of other
Cal.App.2d
Cal.Rptr.
*20
fundamental
v.
(see
Los
Club
36 Cal.2d
rights
(1951)
Angeles
Orloff
Turf
734, 739-742
P.2d
711,
Perez v.
32
449];
728-732
(1948) Cal.2d
[227
Sharp
P.2d 17])—we have
limited such examination to situations
[198
normally
in which First Amendment
have been at
v.
stake
Perrine
(see
rights
656,
Court
5
320,
Cal.3d
661-663
(1971)
488 P.2d
Municipal
Cal.Rptr.
[97
Dillon v.
860,
777,
4
648];
Court
Cal.3d
866
Municipal
Cal.Rptr.
[94
484 P.2d 945];
684,
Burton v.
Court
68
Cal.2d
690-697
Municipal
721,
Oklahoma,
441 P.2d
but see
281];
Broadrick
Cal.Rptr.
[68
supra,
601,
413 U.S.
608
L.Ed.2d
837];
cf. Sunset Amusement Co. v.
[37
Board
Police Commissioners
72-73
(1972) Cal.3d
Cal.Rptr.
[101
768,
We reach a similar
question
Arizona,
Bar
noted, moreover,
in Bates v. State
should also be
Court
as noted above
We further note in connection with the foregoing decision, clear of its indicated its close opinion portion ground departure before interests are fragile discouraged by might apparent: prevail possible outweighed by for the application commercial context. particularly susceptible where it is not necessary concerns for medicine,’ ‘commonsense Since advertiser seeks to disseminate and and U.S., Oklahoma, 9The court stated: “The First presumably protected. at 817-818.” advertising choose not to speak the court. if challenged. that it harm An overbroad from the which ‘has been employed uncertainty might differences’ between the in terrorem to society U.S., Ibid. he can determine [Citations.] (433 possibility interests, linked to commercial traditional rule that a of overbreadth analysis applies As was acknowledged Since overbreadth be The use of overbreadth analysis U.S. at statute applied to further its being because from allowing The reason for and person we decline to that pp. determining information about product might effect of the statute. crushed protected speech unconstitutionally Amendment overbreadth 380-381 more of commercial speech . . . sparingly serve to chill protected speech. uncertainty readily intended well-being, by has been described by who apply person unprotected overbroad regulation. in L.Ed.2d at contemplates protected special than others whether his [the scope it to objective. whether his will and it in circumstances Virginia weakly, [Citation.] professional seems rule in First be muted. of only reflect^ not challenge pp. and other varieties. speech protection Cf. doctrine . . as a or service unlikely 833-834].) Pharmacy if at *21 claim of Bigelow Virginia, the conclusion Indeed, last [1] to go this Court as [Citation.] advertising, Amendment cases is all, But the resort,’ that such First Amendment are other than those activity might speech a statute on the privilege in the v. case] unpunished such . reduced; represents he justification Broadrick Moreover, [Citation.] is truthful there are provides, a context speech ordinary that the person would ‘strong is v. is intention to monitor of rule and to limit its carefully operation aif of should in the future.10 application proliferation complaints appear In our view this is another consideration our determina- yet supporting tion to exercise restraint an of the rule for present analysis undertaking and overbreadth detrimental vagueness permitting applications of free Zurcher (Cf. protected rights speech. Daily Stanford 525, 541-543, U.S. 565-567 98 S.Ct. Due
(d) process. Petitioner contends rule with is inconsistent constitutional of without due of law guarantees forbidding taking property process insofar as it service, the Commission to discontinue permits basis,11 albeit on a without a with temporaiy prior hearing comporting the procedural such Al requirements required guarantees. we believe that though certain those aspects rule—notably dealing with the breadth of the standard to be under rule applied to the issuance of a cause and magistrate prior finding probable with which are to be conducted promptness hearings following summary initial revision in order future termination—require guard against invasions of constitutional we hold that has failed to rights, demonstrate the manner in which the was here provision applied him of to which operated he was entitled deprive under the any rights state or federal due clauses. process 10TheCommission stated: it should be “Finally, out that pointed such as complaints
this have been infrequent. We that law enforcement will hope use the agencies applicable tariff rules with dealing termination services in with criminal conjunction prosecutions. If there is a proliferation terminations, such as this service complaints resulting from we have to revise the tariff rules in the context applicable As a investigation. we regulatory should not body shoulder the to determine and responsibility squelch unlawful activity use. The involving telephone criminal court exists to for system provide resolution of alleged unlawful activity.” above, 11As 11, 1977, indicated the initial termination occurred on March after General had been served with “Finding Probable Cause” executed Waters. Service by Judge 5, 1977, Commission, was restored temporarily on April when the light petitioner’s relief, complaint request interim such relief granted pending holding on the hearings The complaint. Commission’s decision after hearing, which pursuant discontinued, 26, 1977, service was was filed on permanently July made immediately effective. Petitioner does not that the form of notice suggest accorded hearing him to final prior strenuously termination of service was in inconsistent with any way due he process, but *22 contends that discontinuance of service to any prior such notice and hearing of derogation was due his The Commission concluded that process rights. any question of due process out of of arising discontinuance service was temporary rendered moot later, its of granting interim relief 25 it went on to discuss days although the matter on We its merits. do not agree. The fact that was of petitioner service for 25 deprived days prior hearing consistent with due entitles him raise process requirements clearly the issue. 662 doubt,
We have no
and no
assertion
that the
contrary
appears,
interest here in
service to one
question—that
uninterrupted telephone
such service for business
an interest in
using
purposes—is
“property”
the nature entitled to
without due
protection against “taking”
process
law. “In
548,
Board
v. Roth
carrier
Code,
(Civ.
2168), and as
§
such
not discontinue services
without
cause.
v.
good
33-34
(People
Brophy
Cal.App.2d
P.2d
this,
It
follows from
the United States
Court
has
Supreme
held, that a
recently
subscriber
unlawful discontin-
asserting
uance of service
claim of entitlement’
thereby
‘legitimate
“assert[s]
[Roth,
408 U.S.
within the
supra,
Due Process
protection
564]
Clause.”
Gas & Water Div.
(Memphis Light,
v.
436 U.S.
Craft
8-10
30, 38-39,
S.Ct.
1560-1561]; see also Sokol v.
Public
Commission,
Utilities
Given it remains to decide what is “due” process under the circumstances here before us. “We the basic that in case start with every involving proposition clause, of the due within the process deprivation purview property Constitution form of notice and Absent some hearing. requires [Citations.] circumstances resort this extraordinary justifying summary procedures, must take an individual of a hearing place deprived significant before Court, interest. (Beaudreau property Superior supra, [Citations.]” 448, 458; Cal.3d italics added.) initial *23 the 556,
In
case of
Fuentes
Shevin
U.S. 67
(1972)
[32
S.Ct.
the United States
1983],
Court outlined those kinds of
Supreme
be
circumstances which would
considered
sufficiently “extraordinary”
aof
in fewa
limited situations
justify
hearing.12
postponement
“Only
has this Court allowed
seizure
fn.
without
outright
[see
ante]
First,
a
case,
for
in each
the seizure has been
opportunity
prior hearing.
secure
or
directly necessary
important governmental
general public
Second,
interest.
there has been a
need for
action.
special
veiy prompt
Third, the State has
strict control over its
of
kept
monopoly
legitimate
force: the
seizure has been
official
person initiating
government
for
under the
of
standards
drawn
responsible
determining,
narrowly
statute,
it was
Thus,
and
in the
instance.
necessary
particular
justified
the Court has allowed
seizure of
to collect the internal
summary
property
States,
revenue
of
United
to meet the needs of a
effort,
national war
failure,
economic
of
disaster
a bank
protect
and to
against
protect
from misbranded
and contaminated
public
food.”
U.S. at
drugs
(407
90-92
L.Ed.2d at
fns.
cases
pp.
576-577],
omitted.)
[32
also
pp.
(See
citing
Calero-Toledo v. Pearson Yacht
Co.
416 U.S.
(1974)
676-680
Leasing
452, 464-466,
Looking termination without or notice was hearing “directly necessary” interest, furtherance of an that there was a important public demonstrable need for and immediate action. The interest prompt public involved, course, was that of the continued use preventing public facilities for the the violation of criminal utility purpose implementing welfare, health, statutes affecting public decency. Prompt immediate action without notice or was absent prior warning required: action, such the subscriber well have utilized the between might period 12Fuentes involved the seizure of to a outright goods pursuant replevin statute. The indicated, however, court that similar considerations had been held to justify summary of less “takings” tangible (407 in other contexts. U.S. at fn. 23 “property” p. L.Ed.2d at p. *24 to for other
notification and actual termination service arrange the interim inform established customers who called during period Commission, or Sokol v. Public Utilities number numbers. (See changed 254; Note, 65 Cal.2d Termination supra, Summary Telephone of Service Use Stan. L. Rev. 143.) Suspected Illegal for in the forth in Fuentes (and It is third set applied requirement said, to it us. Can be which is of more serious concern Calero-Toledo) the state over its rule we here examine manifests “strict control” the by can it said that More be of force?” particularly, “monopoly legitimate a “the the been official here seizure has person initiating governmental a drawn for under standards narrowly determining, responsible statute, in the that it was instance?” necessary justified particular U.S. (Fuentes, atp. at p. supra, who a no a issues While we have doubt that magistrate “finding a law enforcement officials a cause” by probable upon showing Fuentes, we official” within meaning “responsible governmental 31, in forth the standard to be are troubled the fact that rule setting determination, or would seem to that official in his her applied making in a of circumstances unrelated to action broad range permit summary it cannot be the basic concern necessity. Surely governmental grave use of facilities to violate or said that the actual or threatened in violation of law would constitute assist type emergency is, short, in a deal of There situation action. great summary justifying between for immediate action from the of view need difference point and their for series of the use to bombings plan, example, telephones (cid:127) contract. theft—or indeed a breach of use to plan single petty we rule has been uniformly recognize Although of actual or threatened criminal cases only interpreted apply conduct, with the use of those thereof we believe that dealing portions with of service fail discontinuance comport prior hearing summary forth in Fuentes. In order to for “seizure” set summary requirements at the least that in order to the rule should so provide justify comport, cause to must find that there is action probable summary magistrate believe, are have been or that the facilities not subject telephone only acts, that the but or facilitation used in commission illegal that, action immediate and of such acts is such absent character summary health, or welfare safety, significant dangers public premises, will result. it
We also note that rule while provides *25 relief) the for interim before the (and hearing opportunity apply the Commission discontinuance of service following summary upon filing subscriber,13 of a the makes no relative to complaint by explicit provision the of that We indicated in our Sokol decision timing hearing.14 expressly that a valid termination must include a for procedure prompt opportunity the subscriber “to the and to secure challenge allegations police restoration the service.” Cal.2d at We reaffirm this (65 256.) p. in circumstances business requirement. Especially involving telephones, where discontinuance of service can have serious economic effects upon is subscriber—it the subscriber have an important “early opportunity law enforcement v. (Mitchell put agencies] [concerned proof.” [their] Co., 600, W. T. 416 406, Grant U.S. 609 L.Ed.2d 415].) supra, [40 rule, we continue to be of the view that the if it
Accordingly is to full insure with constitutional compliance applicable guarantees, must contain explicit provisions requiring early hearing—especially circumstances in which interim relief is requested.15 13Wedo believe not that the fact that a is afforded when subscriber hearing only it before the
requests
by filing
Commission renders the
complaint
procedure
The
constitutionally inadequate.
(see
not
Mitchell v.
hearing mandatory,
discretionary
600,
406, 419-420,
(1974)
W. T. Grant Co.
416 U.S.
618
1895];
94 S.Ct.
cf.
[40
294, 309;
Kash
Inc. v.
Los
19 Cal.3d
Enterprises,
City
Angeles,
Adams v.
supra,
146,
145,
961,
(1974)
Department Motor Vehicles
11 Cal.3d
156
520 P.2d
Cal.Rptr.
[113
268, 276,
64
803];
A.L.R.3d
see
(1978)
also
v.
Court
21 Cal.3d
fn. 13
Superior
Garfinkle
208, 578
925]),
P.2d
and the rule
Cal.Rptr.
the burden of
places
[146
proof upon
authorities,
concerned law enforcement
(see
not on the subscriber Mitchell v.
T.W. Grant
Co.,
at
618
supra,
p.
419-420]).
L.Ed.2d at
The
in our view
pp.
[40
“effects a
procedure
constitutional accommodation of the
(Mitchell,
interests of the
conflicting
parties.”
supra,
607,
413,
see also
610
p.
L.Ed.2d at
p.
415].)
see also 40 L.Ed.2d
p.
[40
14The rule does
immediate
require
restoration of service within 15
if the
days
subscriber makes a written
therefor and the
request
concerned law enforcement agency
files no written
of such
objection. Upon
filing
the law
objection by
enforcement
however, service
be restored
agency,
of a
only upon
formal
filing
complaint
(See
ante.)
before the Commission
the subscriber.
fn.
15We
note
also
that the rule here was
the Commission to
final
interpreted by
its
permit
order of termination to contain a
that future business service was to be refused
provision
(See
ante.)
further order.
text
fn.
pending
This
was in our
accompanying
interpretation
correct,
view
other
would have the effect of
an order of
interpretation
rendering
ineffective,
the Commission
restoration of service
in that it could be
refusing
wholly
Moreover,
avoided
for new service.
we think
applying
quickly
simple expedient
that
case which like this one
service.”
of such
no
of constitutional
results from use
in a
infringement
rights
provision
commercial
in the form of
involves
“business
purely
speech
(Cf.
v.
Theater
42
ex rel. Busch
Room
Cal.3d
People
Projection
v.
We are not of the that the adverted shortcomings to above us to relief The affidavits require grant present petitioner. before the which formed the basis of her issuance of the magistrate Probable Cause” herein indicate existence of “Finding abundantly which, action, a situation absent immediate and would result in summary the continued facilitation of criminal offenses posing significant dangers health, Moreover, and welfare. the record indicates that public safety, was afforded a before the Commission examiner hearing 21, 1977, March ten after discontinuance of service and beginning days *26 seven the of his Interim service was days following filing complaint. 5, restored 26, on and final termination did not occur until April July when the decision of the Commission issued. In these circumstances we are convinced that received all the which the state and process federal “due.” No Constitutions established as his for relief here ground appears.16 waiver
(e) Implied
rights.
31,
It is
that rule
consent to its
as a
urged
by implying
provisions
2, ante,
consideration for
service
fn.
7),
(see
furnishing
par.
thereby
involves an invalid waiver of constitutional
Petitioner cites no
rights.
in
of this
and we fail to
applicable authority
support
proposition
perceive
it.
rule
merit in
The
consent to a
to be invoked in
requires
procedure
not,
cases of unlawful use of
facilities. It does
contrary
contention, authorize the invasion of a subscriber’s
to be
petitioner’s
right
free from unreasonable searches and seizures.
U.S.
189-191
statutes
return
Postmaster General to
mail
[upholding
permitting
addressed to one found
him to be
by
fraud];
mail
FTC Standard Education
engaging
FTC,
F.2d,
process rights by hearings public (See before it which of rule 31. Sokol led to the text proceedings following adoption 1, ante.) It fn. is clear however that rule accompanying involved the exercise of a adoption subject rather than a function legislative quasi-judicial (See Commission and that were Wood v. therefore Public public hearings not’required. (1971) 4 823], Utilities Commission Cal.3d 481 P.2d and cases Cal.Rptr. cited.) there with Sokol (f) Consistency requirements.
It is that rule 31 does not with the set argued comply requirements forth in Sokol insofar it a fails to specify pretermination procedure “the entire rules and restrictions comprehending panoply rights, the issuance of our warrants.” Petitioner misreads concerning [search] in this In that the opinion respect. indicating pretermination procedure act, should demonstrate cause to in a manner “probable reasonably to a before a to obtain a search comparable proceeding magistrate 256; warrant” Cal.2d at italics we did (65 added), not p. certainly suggest that the must be in all identical to that involved procedure respects a search warrant. The fundamental for the securing requirements of a search cause, issuance warrant are showing “probable supported affidavit, or des naming describing person, particularly Code, and the searched.” cribing (Pen. property place 1525.) Rule for discontinuance of service § provides only upon We cause this “finding” probable by magistrate. interpret *27 as affidavit the requirement including supporting showing by indicating numbers to be affected and their location. As is from particular apparent case, the record in this the Commission has it in the same interpreted fashion. We find no variation from the of Sokol in this requirements respect.
V We now turn to a of contentions directed to the manner in which group of rule 31 were in the context provisions of the instant applied The basic are three in proceedings. number: arguments presented (1) was from petitioner improperly precluded challenging magistrate’s cause in the Commission; before the finding probable proceedings (2) that the Commission considered evidence obtained law improperly enforcement officials means of an warrant; invalid search was denied his petitioner right discovery. In both its interim and final decisions the Commission held that it
was under no to review the made before the obligation showing in order to determine whether cause for magistrate probable summary so, concluded, termination existed. was This Commission because lies in the this criminal courts petitioner’s remedy respect through motion evidence under section 1538.5 of the Penal Code. In suppress review, however, its answer to the for writ of the Commission petition to have abandoned this it instead whereas appears position, urging on the
was to rule issue of the made empowered adequacy showing before the its failure so to do resulted in no “fatal error” in magistrate, circumstances this proceeding. that,
We believe
contends and as the Commission
petitioner
concede,
now
set forth in section 1538.5 of the
appears
remedy
Code
Penal
is not
in the instant circumstances. That section
applicable
case;
be invoked
“a
defendant”
a criminal
only by
petitioner,
concerned,
insofar as this
is
is not “a defendant.” This does
proceeding
mean, however,
contend,
not
that as
would
that he is
appear
therefore entitled to invoke
the full
Commission
range
before
available to
“defendant” under section 1538.5 of the Penal
procedures
Code
Court
Theodor
It this that the should noted in above matter will respect normally arise in the context of an subscriber for interim relief application by determination final of his If the Commission con- complaint. pending there cludes that is basis for the it should inadequate magistrate’s finding, interim relief. Even in cases when it to the grant thereupon appears Commission that the the affidavits finding adequately supported by *28 it to the wish to consider the and may presented magistrate, strength made to character of the as a factor be with showing weighed, along need or imminent economic in its determination damage, pressing whether or not interim relief should be afforded to the subscriber. not consider that the the in
We do failure of Commission the instant the case to undertake indicated examination relief. any present requires now have been held and the decision rendered. For hearings Complete therefore, the of matter for the present purposes, support magistrate’s must be considered moot. finding It is Commission was without
(2) urged legal authority of a search warrant which to determine certain pursuant validity reason that he 17For this we contention should have been reject petitioner’s permitted the attendance of the in order to relative magistrate give testimony to the compel ex parte cause probable hearing.
669 we do not was obtained. Although evidence agree. Again, presented which of examination to undertake kind is not Commission required case, a criminal subscriber, a “defendant” in if the would necessary 1538.5 section (cf. to a motion under entitled to invoke would be pursuant in cases of this that its Code, we believe 1701), Util. Pub. authority § the affidavits of to make an assessment includes the nature power which evidence warrant in of search pursuant support presented obtained, before it was determine to be introduced sought and credible basis whether contain a therefrom sufficiently objective they assessment, In this magistrate’s finding. making course, the should be of constitu Commission of cognizant applicable it but should admit evidence if it tional safeguards,18 subject determines, those affidavits which fail disregarding aspects clearly that a sufficient basis for to withstand constitutional admission scrutiny,19 Cal.3d 731, 393, v. Hill 12 759 528 exists. (Cf. (1974) People Cal.Rptr. [117 Court, 77, 100-101, 8 Theodor v. Cal.3d fn. 14 at P.2d 1]; Superior supra, We find of this standard in the instant case. no violation 101.) p. III, Constitution, of the state added a result of 18Article section 3.5 thereto as approval 1978, 6, at election held June certain the voters restrictions on primary places to their refusal to enforce on agencies
administrative relative statutes constitutional of their own their It does not affect their enforcement rules or competence grounds. them examine evidence offered before constitutional standards. light in the 19It is that certain matters related affidavits the search urged support the Commission warrant were its product illegal through entrapment, it, error when Herrscher v. Bar 4 Cal.2d citing examiner committed State hearing 399 141 v. Funeral P.2d State Bd. Directors Cal.App.2d Cooley 832] [49 588], evidence could nevertheless be P.2d took the such considered position [296 the context of We An agree. administrative administrative proceeding. agency, Commission, must refuse one of of the Public Utilities to consider the stature especially “evidence inconsistent with the of its and the fair administration of dignity proceedings 356, (1973)9 v. Examiners Cal.3d Board Medical (Patty justice.” Cal.Rptr. 508 P.2d see 485 P.2d 342]; A.L.R.3d also Redner Workmen’sComp. Appeals Bd. Cal.3d Just as evidence obtained Cal.Rptr. by entrapment not at be considered “in administrative which revocation or may proceedings suspension a license to or is at issue” 367), business practice we profession (Patty, supra, p. that such be excluded from believe evidence should consideration in a before proceeding the Commission result in the termination of which business we service. As *29 Sokol, in noted modern commercial communication is society, telephone indispens “[i]n able to and the discontinuance service business of for even a legitimate operations, fail; 247, (65 limited of . . . .” causing company time is to Cal.2d period capable 254-255.) We which threatens believe that a such discontinuance must be proceeding refuses to the conducted in manner which evidence obtained recognition perfidious and deceitful means of entrapment. however, the relief on the this court in None of the instant requires part foregoing, in Even if the the affidavit submitted in of the search case. warrant material support subject we do was the not decide—we that product entrapment—a point conclude to it to the there was material in addition issuance of the untainted ample support warrant. It is claimed he that was denied the by petitioner improperly with and It however, proceed opportunity perfect discovery. appears, time, that a continuance for the was ample including expressly purpose, and that in event he failed to his granted petitioner, pursue request.
VI
we
contention that the Commission failed to
Finally,
reject petitioner’s
make
and conclusions on all issues
to its decision.
findings
necessary
Code,
1705;
Lines,
Util.
see
(Pub.
Inc. v.
§
Public Utilities
Greyhound
Com.
VII For the reasons we have concluded that rule it while must foregoing be modified in certain in order insure the full future respects protection of constitutional due law—and while it bear rights process further examination from the overbreadth some future standpoint case different factual situation—is consistent with presenting generally of our Sokol decision and the requirements requirements of state and have federal constitutional law. We also principles applicable concluded that of the rule to in this case application no involved violation of we his or constitutional As have legal rights. indicated, our of rule and its cases scrutiny application particular decision, not that, will end with this but we are convinced present above, to the observations we have made it “effects a constitution- subject al accommodation of the interests of the (Mitchell parties.” conflicting Co., T. Grant W. 416 U.S. supra,
The order is affirmed.
Tobriner, J., Clark, J., Richardson, J., concurred. BIRD, J.,C. with I concur Concurring Dissenting. majority of rule 31.1 petitioner’s challenges constitutionality agree rejecting commission’s decision terminate petitioner’s existing telephone However, I service was correct. cannot join portion majority
671 order, General the commission’s which finds Telephone directing opinion service to business to.“refuse new and Pacific Telephone Telegraph control, he has financial or or in which managerial [petitioner] any entity Commission,” California, order of this without further location in 665-666, order is ante, 15.) This fn. to be pp. (Maj. opn., proper. own nor with the commission’s Constitution neither with the consistent rules.
It that all the evidence before is clear from record magistrate use of his and the commission petitioner’s telephone pertained prior had for new evidence was that service. No petitioner applied presented Nevertheless, he use such service. business service or how might was a that concluded that there “reasonable commission probability” lead to a of his restoration of service would resumption illegal telephone The basis for the commission’s conclusion was sole petitioner’s activity. that belief should be legalized. prostitution to a blanket record, what amounts the commission issued
On this prior did Since record of business service refusal petitioner. telephone seek under which not the circumstances might indicate petitioner as to future, the commission in the service simply speculated telephone on that Based conversations. speculation, matter of his future subject service, which future from the commission securing precluded else for the is available asking. everyone “an means essential court has service
This recognized telephone the First that access to such service of communication” and implicates 247, 65 Cal.2d v. Public Utilities Commission (1966) Amendment. (Sokol 673, In future P.2d 265].) 255 curtailing petitioner’s 418. Cal.Rptr. [53 on service, restraint the commission prior peti- imposed restraints on It is tioner’s prior speech ability indisputable speak. on First Amendment “the are least tolerable infringement rights.” 539, 683, v. U.S. L.Ed.2d Press Assn. Stuart (Nebraska [49 697, U.S. 96 S.Ct. see Near v. Minnesota 2791]; 1357, 1365-1367, 51 S.Ct. New York Times 697, 625.]; L.Ed. 712-714 [75 825, L.Ed.2d v. 403 U.S. Co. United States [29 413 U.S. v. Human Rel. Comm’n (1973) S.Ct. Press Co. 2140]; Pittsburgh 679-680, 376,-390 93 S.Ct. Since no extraordinary would such a established here that circumstance has been prior justify restraint, commission’s ex order cannot stand. (Cf. People part 17 Cal.3d 58-59 Theater (1976) rel. Busch Room Projection *31 672 5 550 P.2d Perrine v. Court 600]; Cal.3d
Cal.Rptr. Municipal 663-665 488 648].)1 P.2d Cal.Rptr. [97 The of the order is evident when the order commission’s is impropriety examined in of the Court enunciated light principles by Supreme Press. That court local which Pittsburgh ruling prohibited upheld from sex advertise “help-wanted” newspapers publishing segregated However, the was careful to state in its ments. court that nothing opinion advertisements, should be other or criticisms construed or prohibit (Id., the ordinance or its enforcement. L.Ed.2d at at p. analyses Thus, the on limitation future was limited p. carefully expressions contrast, unlawful In commercial based on clearly speech. solely conduct, the commission refused allow petitioner’s past petitioner any new business service without its It is as if the telephone approval. Court in Press had forbidden Supreme publication Pittsburgh advertisement without Such a blanket prior government approval. prior restraint was not because it with the proposed clearly incompatible afforded the First Amendment. protections However, assert that no First Amendment majority supervening interest is involved order because commission’s affects only “purely ante, 665-666, commercial 15.) fn. The are speech.” (Maj. opn., pp. majority mistaken, for the on commission’s ban future service is not sadly carefully tailored to does which ‘no more than a commercial “speech propose transaction,’ ( . . .” Va. v. Va. Bd. Consumer Council Pharmacy [citation]. 346, 358, It U.S. 96 S.Ct. 1817].) prohibits service, all business absent the commission’s The telephone approval. commission has this from essential thereby prevented petitioner using means communication facilitate or clearly political expressions wholly legitimate enterprises. the commission had a its model for concern
Ironically, ready satisfying would use future to further service illegal Busch, 1In law was enforcement authorities to requested injunction prohibit from defendants bookstores and movie theaters which had exhibited and operating sold obscene material. The court held such action would constitute an unconstitutional are restraint. “We aware of no prior cases of bookstore reported authorizing closing theater, it or even after has been full determined repeatedly judicially adversary that all or or hearing all films exhibited or sold therein are substantially magazines theaters, obscene. . . . that the of such bookstores or emphasize either closing [W]e or or the of the exhibition or sale on said temporarily permanently, enjoining premises obscene, or films not so determined to be magazines constitutes an specifically restraint in violation of the First and Fourteenth Amendments impermissible prior to the 59.) (Busch, United States Constitution.” Cal.3d supra, p. *32 to to authorities seek 31 law enforcement prevent activities. Rule permits service. new to he extended new service from applies petitioner being for if This use would be manifest. time, intended procedure At that petitioner’s service, of the termination that for existing to established is identical and a neutral before cause magistrate hearing requiring probable of a denial the burden of enforcement officials on law justifying placing also establishes rule, as modified service.2 The opinion, by majority new whether in be the commission determining the standards to used by be refused. service should in favor of more
The commission eschewed this detailed procedure alternative, found rule 31. which lacks in (Cf. restrictive safeguards 231, 237, 479, 81 364 U.S. S.Ct. Tucker (1960) Shelton [5 L.Ed.2d on The order eliminates the burden law enforcement commission’s that before a neutral cause authorities to establish magistrate “probable of to that use ... to be made the service is exists believe prohibited Further, . is tainted. instead law . . .” use of by Every presumptively with law enforcement authorities to requiring justify interfering peti service, tioner’s the commission has saddled with the petitioner telephone of to the commission to secure the means to communi burden applying cate, the commission of the and the burden convincing apparently the mandate use.3 This shift not only disregards legality any proposed law. rule to due (See but violates process petitioner’s right 649, 654, Freedman v. 380 U.S. Maryland no S.Ct. order standards commission’s 734].) Finally, provides 2The of rule pertinent part provides: this Commission under jurisdiction “1. communications Any utility operating service to a of a disconnect existing refuse to a new and shall shall service applicant, subscriber, of a law enforcement agency from authorized official defined receipt any upon 807 and finding Penal Code Sections by writing, signed by magistrate, be made of the service is that the use made or to cause exists to believe probable law, used as an or the service is or is to be instrumentality, being prohibited by of the law. or violate or to assist the violation to directly indirectly, to have the Commission notice right “4. concerned law enforcement shall Any agency rule, 2 of and this shall held the Commission hearing pursuant paragraph therein, and argument evidence including right present have the right participate law be witnesses. Such enforcement shall agency and to entitled cross-examine present in such and shall of all notices orders issued copies proceeding receive that the made or to be made of the service is both the burden of use proving have law, is to used as an or that the service is or be being instrumentality, prohibited law, burden or violate or to assist the violation of directly indirectly, the service should be refused or should not the Commission that of persuading restored.” “if are that it will allow new service we only decision provides 3The commission’s service to facilitate is not the use resuming convinced [petitioner] 35.) No. (Dec. of the law.” p. violation whether is entitled to receive new service. determining Such a standardless administrative exercise First procedure involving Amendment Perrine v. (See, rights impermissible. e.g., Municipal Court, 5 Cal.3d 661-662.) supra, at pp. reasons,
For these I am to conclude that the commission’s *33 compelled order Therefore, too far. I would goes strike that of the order portion which directs the to refuse future service to telephone companies petitioner.
Mosk, J., Newman, J., concurred.