68 Cal. 2d 137 | Cal. | 1968
Petitioners are charged with criminal contempt, a misdemeanor, for willful disobedience of an order of the superior court. (Pen. Code, § 166, subd. 4.) Prior to the entry by them of a responsive pleading to the complaint (see Pen. Code, §§ 949, 1002, 1003, 1004, 1016) but subsequent to their release upon posting bail, they applied for a writ of habeas corpus in the superior court, alleging that they were being illegally restrained of their liberty because the order they are charged with disobeying is void and unenforceable in that it constitutes a violation of their constitutional rights. The petition was denied without argument or opinion, and petitioners thereupon applied, on the same ground, for a writ of habeas corpus in the Court of Appeal, Third District. The Court of Appeal granted the writ as prayed for and filed an opinion. We granted the petition of the People
Plaintiff prayed, inter alia, for the following relief: ‘ ‘ That Defendants and each of them, their officers, agents, servants,
“a. From ordering or continuing to order, or asking or requesting, or otherwise inducing or attempting to induce any emploji-ee of the Plaintiff to cease work for or not to work for the Plaintiff;
“b. From intimidating, threatening, molesting or coercing the Plaintiff or Plaintiff’s agents, employees, suppliers, contractors, guests or invitees;
“e. From striking or engaging in a work stoppage or other similar concerted activity against Plaintiff, or inducing or calling a strike, work stoppage or other concerted activity against Plaintiff; and
“d. From picketing, and from placing, stationing or maintaining, or causing any picket or pickets to be stationed or maintained, and from causing, participating in or inducing others to participate in any demonstration or demonstrations on any grounds, or that portion of any private or public street which adjoins any grounds, or on any sidewalk which is contiguous to any portion of any private or public street which adjoins any grounds which are owned, possessed or controlled by the Plaintiff and on which are situated any building, buildings or structures of any kind whatsoever which are occupied by Plaintiff and in which employees of Plaintiff are assigned to work. ’ ’
It was also prayed that a temporary restraining order “in accordance with this prayer” be issued ex parte, and the affidavit of the county welfare director was filed in support of this application. The affidavit stated, inter alia, that the membership of the Union included 564 persons in nine separate job classifications employed by the welfare department; that the welfare department was responsible for administering grants of assistance under various public social service programs ; that the calling of a strike by the Union would result in irreparable damage to the ability of the welfare department to discharge its obligations to administer such programs in that (a) substantial delays in the processing of new applications for assistance would result, (b) the function of continually investigating and examining the status of recipients in such programs would be substantially impaired, (e) counsel-ling and other specialized services to recipients would be sub
On February 2, the date of filing the complaint for injunction, the superior court issued its order that defendants show cause on February 16 why the relief prayed for in the complaint should not be granted during the pendency of the action. It also issued ex parte a temporary restraining order as prayed for by the County. (Code Civ. Proc., § 527.) This order, in language identical in all relevant respects to that contained in the prayer of the complaint, enjoined the persons named in such prayer from doing the acts therein enumerated pending the February 16 hearing on the order to show cause in re preliminary injunction; it additionally stated, however, that “Nothing in this Order shall be so construed as to affect the right of any employee of Plaintiff to abandon or resign his employment.” Copies of this order, along with the summons, complaint, and other supporting documents, were personally served upon those eight persons who were specifically named in the complaint as officers and/or members of the executive board of the Union.
It appears that Union officials and attorneys made it known
For approximately thirty days following February 7 members of the Union, together with private persons in sympathy with their aims, continued peaceful picketing activities on sidewalks in front of the two welfare department buildings and in front of the County Administration Building.
At no time during the five days intervening between the issuance of the temporary restraining order and the commencement of the strike did the Union or any other defendant seek to have the order vacated or modified. (See Code Civ. Proc., §§ 532, 533, 937.) On February 16, the date set for hearing on the order to show cause in re preliminary injunction, the Union through its attorneys requested and was granted a continuance of the hearing until February 27. Hearing was had on that date, and on March 3 the preliminary injunction was granted; this order, in language identical in all relevant respects to that contained in the prayer of the complaint and in the temporary restraining order, enjoined the same persons from engaging in the same acts during the pendency of the action for permanent injunction.
The four petitioners herein were among those arrested and charged with criminal contempt for willful disobedience of the temporary restraining order. In their verified petition it is alleged that each is a private citizen and is in no way affiliated with the Union, the County, or the welfare department; that each picketed before a county building on a date after commencement of the strike; that each, after being served with a copy of the temporary restraining order while so picketing, refused to disperse after being ordered to do so and was arrested; that each was charged with criminal contempt for disobedience of the temporary restraining order; and that
We conclude preliminarily that habeas corpus is an appropriate remedy under the circumstances of the ease at bench. It is well settled that a court is without jurisdiction to subject a citizen to criminal prosecution for violation of an unconstitutional statute or ordinance, and that habeas corpus will lie prior to trial in order to effect his release from actual or constructive
At the threshold of the inquiry we are met with the County’s contention that questions of the constitutionality of the temporary restraining order are irrelevant to the instant proceeding. It is urged that the superior court, having subject matter and personal jurisdiction in the premises, had the power to preserve existing conditions while it was in the process of determining the substantial question of its authority to grant the injunctive relief sought, and that the temporary restraining order, as an expression of that power, was to be obeyed upon pain of contempt regardless of its constitutional validity as ultimately determined. The County additionally argues that the failure of petitioners to seek vacation or modification of the order through available legal means prior to their willful violation of it precludes their mounting a constitutional challenge in the context of contempt proceedings resulting from such disobedience.
In Fortenbury v. Superior Court, supra, 16 Cal.2d 405, petitioner had been held in contempt of court for violating a temporary restraining order prohibiting picketing in connection with a labor dispute. Reviewing the judgment by writ of certiorari, we held that the order was in violation of petitioner’s constitutional rights under the First Amendment, that the superior court was therefore without jurisdiction to issue it, and that petitioner should not have been adjudged guilty of contempt. We annulled the judgment. It is therefore clear that a temporary restraining order constitutionally void on its face is issued in excess of jurisdiction and cannot sustain a contempt judgment based upon its violation.
The case of Signal Oil etc. Co. v. Ashland Oil etc. Co. (1958) 49 Cal.2d 764 [322 P.2d 1], although it cites the United Mine Workers case and contains language heavily relied upon by the County herein, is clearly in harmony with the principles above expressed. There the superior court had issued a temporary restraining order enjoining acts in violation of a certain agreement, which acts were nevertheless undertaken. Subsequently the Supreme Court of Delaware
The County’s second contention on this point is, as indicated above, that petitioners cannot now be heard to raise objections as to the constitutional overbreadth or vagueness of the order in view of the fact that they failed to seek modification or vacation of it prior to their acts of willful disobedience. It is clear, however, that the law of California is to the contrary. In this state a person affected by an injunctive order has available to him two alternative methods by which he may challenge the validity of such order on the ground that it was issued without or in excess of jurisdiction. He may consider it a more prudent course to comply with the order while seeking a judicial declaration as to its jurisdictional validity. (See Mason v. United States Fid. & Guar. Co.
The recent ease of Walker v. City of Birmingham (1967) 388 U.S. 307 [18 L.Ed.2d 1210, 87 S.Ct. 1824], upon which the County places great reliance, raises no barrier preventing present consideration of petitioners’ constitutional contentions. There defendants had participated in a civil rights demonstration in spite of a court order restraining such participation. In the course of subsequent contempt proceedings they sought to show that the order with whose disobedience they were charged was unconstitutionally vague and overbroad. However, the Alabama circuit judge, “pointing out that there had been neither a motion to dissolve the injunction, nor an effort to comply with it by applying for a permit from the city commission before engaging in the Good Friday and Easter Sunday parades,” concluded that the only issues before him were whether there was subject-matter jurisdiction to issue the order, and whether petitioners had knowingly violated it. The Supreme Court of Alabama, in affirming the convictions, also declined to consider petitioners’ constitutional attacks upon the injunction and underlying ordinance, stating: “We hold that the circuit court had the duty and authority, in the first instance, to determine the validity of the [parade] ordinance, and, until the decision of the circuit court is reversed for error by orderly review, either by the circuit court or a higher court, the orders of the circuit court based on its decision are to be respected
The Supreme Court of the United States set forth the issue before it in the following terms: “In the present case ... we are asked to hold that this rule of law, upon which the Alabama courts relied, was constitutionally impermissible.” The court refused to so hold, with four justices dissenting. The majority laid emphasis upon the particular circumstances of the ease before the court, noting that “this is not a case where the injunction was transparently invalid or had only a frivolous pretense to validity.” (388 U.S. at p. 315 [18 L.Ed.2d at p. 1217].) It was conceded that both the order and the ordinance underlying it were “subject to substantial constitutional question,” but the court held that Alabama’s insistence upon recourse to legal channels in order to raise such issues was constitutionally permissible, at least where the order was not void on its face.
The County herein relies heavily upon the Walker case in an effort to sustain its position that petitioners must be precluded from raising constitutional objections to the subject order because they did not seek its modification or vacation prior to their willful disobedience of it. It is apparent, however, that the holding of the Walker case, as distinguished from its language, is only that the rule of law followed by the State of Alabama did not, in the particular circumstances of that ease, constitute an intrusion upon First Amendment freedoms. In California, as we have shown above, the rule followed is considerably more consistent with the exercise of First Amendment freedoms than that adopted in Alabama, and it is therefore difficult to perceive how the Walker decision is of relevance herein. Further, it is notable that the majority in Walker indicated that the Alabama rule might be constitutionally impermissible in a case wherein the order or ordinance involved was unconstitutional on its face, or was “transparently invalid or had only a frivolous pretense to validity.” Thus it appears that the Walker decision is consistent with the California rule that an order void upon its face cannot support a contempt judgment.
We proceed to an examination of petitioners’ contention that the temporary restraining order which they are charged with disobeying is constitutionally overbroad and vague, and is therefore void on its face.
We emphasize at the outset that our decision in the instant ease renders unnecessary a present determination of the question whether strikes by public employees can be lawfully enjoined. We do not address ourselves to that question, and we here express no opinion upon it. Rather, our consideration of the order here at issue proceeds upon the assumption that public employees may be lawfully enjoined from striking and from carrying on specific activities in support of a strike, and we conclude that, even upon this assumption, the order violates constitutional safeguards.
We believe that the leading ease of Thornhill v. Alabama (1940) 310 U.S. 88 [84 L.Ed. 1093, 60 S.Ct. 736] (see fn. 11, ante), although involving a different factual background, clearly enunciates the principles which govern us in the case at bench. There petitioner, a member of a group of persons picketing their former employer, was convicted under an Alabama criminal statute which generally forbade picketing or loitering upon or near the premises of a business firm for the purpose of influencing or inducing persons not to deal with it, or of hindering its business. The United States Supreme Court held that the statute was invalid upon its face, observing that it was the kind of directive “which does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press.” (310 U.S. at p. 97 [84 L.Ed. at p. 1100].) The court continued: “The range of activities proscribed by § 3448, whether characterized as picketing or loitering or otherwise, embraces nearly every practicable, effective means whereby those interested—including the employees directly affected—may enlighten the public on the nature and causes of a labor dispute. The safeguarding of these means is essential to the securing of an informed and educated public opinion with respect to a matter which is of public concern. . . . Every expression of opinion on matters that are important has the potentiality of inducing action in the interests of one rather than another group in society. But the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion.” (Pp. 104-105 [84 L.Ed. at pp. 1103-1104] ; fn. omitted.)
In Thornhill, as in the instant case, the state urged that the directive in question sought to protect legitimate public interests. The interests there in question were those of preservation of public peace and safety; the interests con
Our conclusion on this point is not altered by the fact that section (4) of the order forbids picketing and demonstration only in a limited area, to wit, before public buildings where county employees "are assigned to work.” The indicated areas are the very places where communication of the content of the Union’s grievances would be most effective. (See Edwards v. South Carolina (1963) 372 U.S. 229, 235-236 [9 L.Ed.2d 697, 701-702, 83 S.Ct. 680].) Again, the County has fallen far short of demonstrating a compelling public interest sufficient to justify limitation of informational picketing and demonstration per se in the locations where the order forbids such activities. (Cf. Adderley v. Florida (1966) 385 U.S. 39 [17 L.Ed.2d 149, 87 S.Ct. 242].)
Other language in the order compounds the effect of tile indicated intrusion into the area of protected expression. Section (4) forbids "inducing others to participate” in demonstrations. Section (3) forbids "inducing or calling a strike, work stoppage or other concerted activity ” (italics added) against the County. It is clear that this language is broad enough to include the distribution of literature, the circulation of petitions, the publication of articles, and much other Union activity in connection with its grievances against the County. Even if we assume, as we have done above, that all such activity would be properly enjoinable insofar as it advocated a strike by public employees, still a vast area of constitutionally protected activity falls within the wide reach of the ban.
Further, it appears that even sections (1) and (2) of the order are so broadly worded "as to permit within the scope of [their] language the punishment of incidents fairly within the protection of the guarantee of free speech. ...” (Win
We are not persuaded by the County’s argument that these sections must be viewed “in context” in order to supply the necessary limitation. Even if we were to agree that the “context” of the order provides some indication that the acts set forth in sections (1) and (2) are proscribed only insofar as they relate to strike activities (which activities we have above assumed to be properly enjoinable), it is clear that constitutionally permissible restrictions upon the exercise of First Amendment rights (see Sherbert v. Verner (1963) 374 U.S. 398, 406-407 [10 L.Ed.2d 965, 971-972, 83 S.Ct. 1790]) must be drawn with a narrow specificity calculated to prevent repression of expressive activities as to which restriction is constitutionally forbidden. (See N.A.A. C.P. v. Button (1963) 371 U.S. 415, 433 [9 L.Ed.2d 405, 418, 83 S.Ct. 328] ; Shelton v. Tucker (I960) 364 U.S. 479, 488-490 [5 L.Ed.2d 231, 237-239, 81 S.Ct. 247] ; Fort v. Civil Service Com. (1964) 61 Cal.2d 331, 337 [38 Cal.Rptr. 625, 392 P.2d 385].) When restrictions in the area of free expression are at issue, an appeal to “context” is insufficient to satisfy constitutional requirements of precision.
We conclude that each of the four sections by which the subject order describes the activities forbidden is so broadly drawn as to include within its reach activities fairly within the protection of constitutional guarantees of free speech and expression.
Finally, turning our attention from the scope of activity proscribed by the order, we observe that the description of the group to which such proscription applies is vague and indefinite. As shown above, the order is directed not only to the Union and its representatives, but also to “all persons in active concert or participation with them or in concert among themselves.” (Italics added.) We recognize that the direction of injunctive orders to persons “in active concert or participation with” specifically named parties defendant
The combination of what we have termed the “overbroad” and the “vague” aspects
We hold that the order which petitioners are charged with disobeying is unconstitutionally overbroad in that it unnecessarily restricts the exercise of First Amendment rights; that the order is too vague and uncertain to satisfy the requirements of notice and fair trial which are inherent in the due process clause of the Fourteenth Amendment; that the doctrine of severability is here inapplicable; and that the order is therefore void in its entirety. These determinations, in light of the principles above expressed, compel our conclusion that the temporary restraining order in question was issued in excess of the jurisdiction of the superior court, that petitioners are therefore unlawfully restrained of their liberty, and that the relief prayed for must be granted.
The writ is granted and the petitioners ordered discharged.
Traynor, C. J., Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.
McComb, J., dissented.
The People were not a party to the original habeas corpus proceeding in the superior court. Neither were they a party to the subsequent original proceeding in the Court of Appeal until, after that court had granted the writ, they first appeared by petition for rehearing. Upon denial of that petition the People sought and were granted.a hearing in this cpurt,
The verified petition for a writ of habeas corpus, together with points and authorities in support thereof and relevant records and other documents presented in related proceedings, was filed in the Court of Appeal on February 17, 1967. For reasons which have not been made apparent to us, the Court of Appeal issued no order to show cause in the premises but instead requested points and authorities in opposition; thus, no return was filed. However, points and authorities were submitted separately by the district attorney and the county counsel; also submitted by the latter were additional records and other documents filed in related proceedings, as well as affidavits newly filed in opposition to the petition then before the court. After decision by the Court of Appeal and the filing of the People’s petition for a hearing in this court, petitioners Berry et al. filed an answer to the People’s petition; to this answer they appended, inter alia, further records and documents filed in related proceedings. Finally, after this court had granted a hearing, the county counsel filed a brief in opposition, to which were appended, inter alia, still additional records, affidavits and other documents.
We are of the view that all of the indicated material is properly before us in this proceeding, and we have relied upon the same in the following statement of facts. To the limited extent that issues of fact have been raised, we consider their resolution irrelevant to a determination of the legal issues here involved; therefore the facts pertinent to contested factual points are stated as alleged by petitioners, with appropriate reference to the existence and content of disagreement.
The county counsel has filed as exhibits certified copies of newspaper articles purporting to describe events which occurred immediately prior to or after the issuance of the temporary restraining order on February 2. Without pausing to consider the problems of hearsay thus presented, we note that one of these articles, which appeared on February 3, reflects (1) the opinion of Union attorneys as to the constitutional overbreadth of the order, and (2) the determination of Union officials to proceed with the strike in spite of the order.
It appears that unauthorized absences from work also continued at least until February 14. On that date the welfare director filed his affidavit in support of the application for preliminary injunction, wherein he alleged that continuing unauthorized absences had in fact, brought about those effects upon the department and its functions which were predicted in the affidavit in support of the temporary restraining order.
Section 166 provides in relevant part that “Every person guilty of any contempt of court, of either [sic] of the following kinds, is guilty of a misdemeanor: ... 4. Willful disobedience of any process or order lawfully issued by any court; ...”
The petition sets forth specific facts relating to the arrest of each petitioner, which we summarize as follows: Colin Scott Berry is a student at Sacramento State College and is in no way affiliated with the Union, the County or the welfare department. On February 9, 1967, at about 4:30 p.m., lie arrived at the County Administration Building and began to walk up and down on the sidewalk in front of the building along with a number of other private citizens. He carried a sign which read ‘ ‘ Citizens Support Social Workers Strike.” At approximately 5 p.m., 15 police officers arrived, and Berry, along with the other pickets was presented with a copy of the restraining order. The police then ordered all present to disperse, and six persons complied. When Berry did not comply and continued to walk up and down with his sign, he was warned that he would be arrested if he did not leave. Berry continued his course of conduct in spite of this warning and was arrested.
Alan B. Hall, Jack Robinson, and Meredith Crown are private citizens and are in no way affiliated with the Union, the County, or the welfare department. On February 10, 1967, they appeared at the County Administration Building and began to walk up and down on the sidewalk in front of the building. Each carried a blank rectangle of light cardboard. Police arrived, presented each with a copy of the restraining order, and warned that arrest would ensue if they did not leave the scene. They continued their conduct and were arrested.
Among the affidavits filed by the County herein are those of the arresting officers. The affidavit relating to the arrest of petitioner Berry alleges inter alia that he, after being served with the temporary restraining order and other relevant documents, and after being ordered to cease picketing, left the scene along with the other pickets and placed his sign in his ear; but that he returned alone a few minutes later, began to picket with his sign, and was arrested. The affidavit relating to the arrests of petitioners Hall, Robinson, and Crown alleges inter alia that they were among some twenty persons who were picketing before the County Administration Building immediately preceding their arrest; that all of such persons ‘‘ carried signs, some of which were blank rectangular pieces of light cardboard, and others of which stated: ‘Social Workers Union, Local 535, B.S.E.I.U., AFL-CIO,’ and ‘On Strike Against Sacramento County ’ ”; and that petitioners Hall, Robinson, and Crown were among those persons who carried blank rectangular pieces of light cardboard.
The fact that a petitioner has been admitted to bail of course does not preclude examination by habeas corpus of the lawfulness of his con
It apears that on February 21, 1967, four days after the petition for writ of habeas corpus was filed in the Court of Appeal, the original complaints were amended so that specific reference was made to the temporary restraining order. We, of course, do not condition habeas corpus relief upon the exhaustion of remedies not available at the time of the petition.
The prayer for injunction designated the four groups of proscribed acts by the letters a, b, c, and d. The temporary restraining order designated the same groups by the numerals 1, 2, 3, and 4. We adopt the latter designation hereafter.
As we have indicated, the defendants set forth in the temporary restraining order and order to show cause were the Union, eight officers and directors thereof, 750 Does, and 150 Doe associations.
As will appear, our consideration of the validity of the temporary restraining order will not be limited to its effect in the circumstances of the cases before us. “. . . where a provision restricting free speech and the free dissemination of ideas is involved, a court in considering the claim of overbreadth and vagueness may take into account the operation of the provisions as to factual situations other than the one at bar. (N.A.A.C.P. v. Button, supra, 371 U.S. 415, 432-433 [9 L.Ed.2d 405, 417-418, 83 S.Ct. 328] ; Thornhill v. Alabama (1940) 310 U.S. 88, 96-99 [84 L.Ed. 1093, 1098-1100, 60 S.Ct. 736] ; In re Blaney (1947) 30 Cal.2d 643, 650-653 [184 P.2d 892] ; In re Porterfield (1946) 28 Cal.2d 91, 115 [168 P.2d 706, 167 A.L.R. 675] ; In re Bell (1942) 19 Cal.2d 488, 495-496 [122 P.2d 22].) ” (Fort v. Civil Service Com. (1964) 61 Cal.2d 331, 339 [38 Cal.Rptr. 625, 392 P.2d 385] ; see also Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 508-509 [55 Cal.Rptr. 401, 421 P.2d 409].) We pointed out in Fort, at page 339, that this rule is usually applied in connection with criminal statutes, but that it was “appropriate whenever a provision too broad or vague, if allowed to stand, would amount to a coercive restraint of free speech, . . In the instant case, as in In re Blaney (1947) 30 Cal.2d 643 [184 P.2d 892], we apply this rule of broad examination to a civil directive whose ‘1 coercive ’ ’ effect arises from the fact that the contempt sanction is available for its enforcement.
We are unable to ignore the possibility that a prohibition of the breadth here manifested may in fact bring about work stoppage by eliminating informational alternatives. (Cf. Edwards v. South Carolina (1963) 372 U.S. 229, 235-236 [9 L.Ed.2d 697, 701-702, 83 S.Ct. 680].)
See the practice forms set forth in 1 Civil Procedure Forms Manual (Cent. Ed. Bar 1967) p. 113, and Civil Procedure Before Trial (Cont. Ed. Bar 1957) pp. 625-627. The indicated language has the approval of statute in the federal courts. (See Fed.B.Civ.P. 65(d).)
We note in passing our grave doubts as to the jurisdictional validity of an injunctive order directed to persons other than the parties defendant, their representatives, and persons in active concert or participation with them. (See and compare Fed.B.Civ.P. 65(d).)
It has been suggested by one thoughtful commentator that “over-breadth” and “vagueness” are but doctrinal aspects of a broader defect known as ‘1 unconstitutional uncertainty ’ ’—which defect appears whenever the language of a directive supported by penal sanction “injects into the governmental wheel so much free play that in the practical course of its operation it is likely to function erratically—responsive to whim or discrimination unrelated to any specific determination of need by the responsible policy-making organs of society—and to result in a significant number of impermissable publie-versus-private-interest resolutions which are beyond the effective discovery or appraisal of the Court.” (Note, The Void-for-Vagueness Doctrine in the Supreme Court (1960) 109 U.Pa.L.Rev. 67, 90; cf. Thornhill v. Alabama, supra, 310 U.S. 88, 97-98 [84 L.Ed. 1093, 1099-1100].)
