*1 22748. In Bank. Jan. No. [S.F. 1971.] PARR,
ANN KESSINGER Plaintiff and Appellant, THE MUNICIPAL COURT THE FOR MONTEREY-CARMEL COUNTY, JUDICIAL OF MONTEREY DISTRICT Defendant and Respondent; PEOPLE,
THE Real in Interest and Party Respondent.
Counsel Halvonik, Heisler, Paul N. Francis A. and Richard M. Herbert Schwartz for Plaintiff and Silver Appellant. for Defendant and
No Respondent. appearance Burleigh, William B. for Real in Interest and City Re- Attorney, Party spondent.
Opinion MOSK, J. 31, 1968, On Council of July Carmel-by-the-Sea (Carmel) ordinance the use 697.02 adopted regulating public property. (2)(b) Section of the ordinance declares: “On any shall public property be unlawful [(2) (b)] tree; walk, to: . . . any Climb person or any monuments, vases, fountains, fences, or stand sit upon railings, planted areas, or other any used for upon customarily such or to sit on any sidewalks or or to lie or sit purposes, on any steps, addition, lawns.” ordinance disfiguration or removal of prohibits washrooms, resources, misuse of removal of natural property, construction of structures on any without destruc public property permit, tion or removal of trees or on shrubbery and boisterousness on vend loitering public property, public property, without ing advertising permit.
The ordinance was a “Declaration of Urgency” designed accompanied to render it effective The declaration “This immediately.1 provides: safety preserve public peace adopted pursuant *3 to Government Code Section and shall take effect The immediately; Council City has observed an influx of Carmel-by-the-Sea extraordinary undesirable and the visitors to sometimes known as unsanitary City, ‘hip- and finds that unless pies,’ regulations immediately proper adopted the use and enjoyment will be if not entirely jeopardized eliminated; are, cases, the and beaches rendered public parks many unfit for normal use the and uncontrolled conduct of public unregulated the new transients.” 18, 1968, Parr, merchant,
On Sunday, August Ann a local was arrested while sitting Plaza, grass Devendorf public Carmel. 697.02, She was charged with a violation of section subdivision (2) (b), of the Code—unlawful on a lawn. Mrs. Municipal public Parr’s arrest took at the place her in a park during participation public called to the assembly discuss new ordinance.
Having demurred unsuccessfully criminal filed against complaint her in court, municipal Mrs. Parr next a writ of from sought prohibition court superior to restrain the lower court proceeding trial. After hearing on November her for a writ was petition peremptory denied, and she appeals.
Petitioner contends that 697.02, section (2) (b), subdivision is void on its face because it is unconstitutional class which legislation violates equal clause protection of the Fourteenth Amendment.2 She asserts that the and effect of the challenged section is to discriminate against “hip- as a pies” because of their status and drive them out of the city.
The traditional focus of the clause has been the relation- equal protection 1 California Government Code provides part section 36937 as follows: “Ordi nances take days effect 30 after passage. their final An ordinance takes effect immedi ately, if it is (b) an ordinance: . . . For the preservation immediate of the peace, safety, health or containing a constituting urgency, declaration facts passed and is by a four-fifths vote of the council.” also contentions, 2 Petitioner i.e., makes several other that the ordinance is an uncon stitutionally overbroad rights invasion of the speech assembly, of free peaceable challenged uncertain, unconstitutionally governed that the field by the ordinance law, has preempted by been state ordinance was not effective on the date of the properly adopted arrest because it was not as an ordinance. Because we conclude that equal the ordinance protection violates clause, these additional require contentions do not discussion. and the between the classifications drawn statute ship rational A does bear a statute. classification which statutory violates is intended to serve which statute relationship clause. But there is an additional dimension equal equal protection permis be related to classifications protection statutory requires sible the use of Court “has purposes. gone beyond equal clause clause as a classification It has protection requirement. interpreted as a ban and thus has become involved against ‘discriminatory’ legislation, . . . Laws are invalidated by criticism of legislative purpose. hostility antago because are expressions as discriminatory Court mo . . . When individuals. proscribed nism to certain groups good a concern for replace hostility tives prejudice] [of law, a violation of equal prohibi there is protection ‘purpose’ Jacobus Tussman and legislation.” (Joseph tion *4 341, (1949) Cal.L.Rev. the Laws tenBroek, Protection Equal The of 357, 358-359.) 529, Cal. (1966) 64 Cal.2d 533-534 Mulkey Reitman
Thus,
[50
v.
Mulkey (1967)
The urge us to ignore Urgency in the Declaration of language People and to look exclusively They ordinance. -language operative that the ordinance is neutral its face—that emphasize on prohibits lawns, sitting just hippies. ordinance, contend, is the desire to destruction prevent permissible due to excessive grass.
But we not blind may ourselves official of a hostile pronouncements and discriminatory because the ordinance purpose solely facially employs neutral As language. in a milieu celebrated early for toleration minorities, of one most California’s struck down distinguished jurists legislation neutral on its he face pierced when veil disclose its subtle (D.Cal. In Ho Kow discriminatory 1879) Ah v. Nunan 12 Fed. purpose. Cas. Sawy. Justice J. Field invalidated a San Fran- Stephen cisco ordinance that male requiring every his entering have county jail hair cut a ordinance, Chinese, to uniform length of one inch.3 Under a convicted of a misdemeanor violation of a health statute prohibiting persons in overcrowded was his sleeping to the loss quarters, subjected traditional The basis of Justice was queue. Field’s his ruling analysis ordinance as class legislation racially punish unpopular Chinese. “The class character of this none the legislation is less manifest 3 This case decided was handling Justice Field while his circuit duties in Cali Field, court, fornia. the fifth Chief Justice this appointed had to the been United States Court in 1863 President A Abraham Lincoln. commentator has greater legal written that he “had history effect on California than institutions any other (Supreme man . . . .” (J. 1963) Court Justices Johnson see of Cal. ed. Prince, Stephen Field.) J. of the terms
because in which it is The statements general expressed. cannot, true, in debate on the of the ordinance it is be supervisors passage used; resorted to for the but of the terms meaning explaining can be resorted they to for of ascertaining general object be Be- mischiefs remedied. legislation sought proposed, sides, we cannot shut and general our to matters of eyes notoriety When we take our seats on the bench we are not struck with cognizance. blindness, men; forbidden to know as what we see as where judges ordinance, terms, a general in its though only operates upon special race, class, sect or understood that it is to be enforced being universally class, race, only against sect or conclude that it was may justly intention it that it should have body adopting such.operation, and treat it . . . accordingly. ordinances, illustrations be where
“Many might general given terms, class, class, would a operate only excep- upon special upon tional and thus severity, incur the odium and be objec- subject legal instance, tion of intended have, hostile legislation them. We against our community Now, number of . should large Jews. . in some amenable, quarter city overcrowd their and thus become dwellings Chinese, like the to the act concerning lodging-houses sleeping apart- ments, an ordinance of the confined supervisors requiring prisoners in the county jail should be fed on be one be would seen by every pork them; leveled and, terms, be regarded would notwithstanding general as a law in its special . . . operation. a state legislation by and our hostile country
“[I]n sect, nation, form it class, creed of any whatever constitution.” amendment of the the fourteenth is forbidden by expressed, (Id. 255, 256.) at pp. *6 1961) (E.D.La. Board in Hall v. Helena Parish School
More St. recently, 521, 649, 82 affd. curiam 368 515 L.Ed.2d 197 U.S. F.Supp. per neutral and 529], language federal district court looked through local in a Louisiana state law giving a discriminatory uncovered purpose schools. “Irrespective the to public private option operate municipalities statute, area racial discrimi- terms of a express particularly effect. nation, its as well as its substance courts must determine purpose an motive for ‘A the most obvious offering result foreseen and intelligently about, taken have been act that will it be to fairly may bring Moreover, Milwaukee, 713, .... act’Miller v. 272 715 U.S. done become unlawful when to may accomplish ‘acts lawful generally argue The that we should probe unlawful end.’ defendants [Citation.] events which should legislation, ignore of this based validity led its determine its passage, up accompanied on its ‘. . . we our matters of public But cannot shut language. eyes . . The legislation, .’ this notoriety general cognizance. sponsors statements, itself, out real their if not in the Act have spelled Oyama 652.) (See v. (197 (Fns. omitted.) also purpose.” F.Supp. 650-651, 249, 261-262, 633, (1948) 332 657 [92 California 269], Sharp (1948) Justice concurring; S.Ct Murphy Perez Cal.2d P.2d Carter Justice concurring.) statutes, to more their actual Compared sophisticated subtly concealing motivation, the enactment before us the virtue of candor possesses thus makes our task need relatively beyond We not look uncomplicated. of this adopted language ordinance to discover its hostile d’etre. raison of “undesirable” and to as “unsanitary” referred description persons “transients” may not with the claimed neutral squared pre- venting order grass protect from undue But wear.4 doubt any remains as to the council’s objec- tive, we need refer of the city’s legal spokesman, explanation the city attorney, brief filed with this court: “Carmel also People’s urges court examine the ‘historical context and the existing conditions to’ prior enactment the ordinance. not shut its We court will hope eyes to ‘matters of notoriety and We general cognizance.’ hope court has seen instant slum created We Haight-Ashbury. hope court has seen deterioration if not destruction of the Telegraph-campus in Berkeley; we court has of the com- hope seen and filth squalor Sur, munes in and the Big damage caused sheer numbers of this transient The court be aware that had become phenomenon. Carmel a meeting mecca—for the place—a who had disenchanted become hippies with the Haight-Ashbury this ordinance we Berkeley. Regarding hope that the court observed the ‘conditions to its enactment.’ The existing prior mass of humanity smothered the occupied grass by very numbers. The grass struggled with and competed overwhelming effect knives, of heavy bottles, usage—cigarettes, and just people.” plain
The discriminatory is unmistakable in the antagonism city’s description necessitated ordinance 697.02. This problem purportedly rationale evolves: have cause of the destruction of the been the *7 significant legislative 4 It is city that the protect scheme to purportedly park prohibits only lying sitting grass, standing, running, or on the but does not ban playing, grass. gamboling by persons, great numbers, singly or in same numbers;
communities which their Carmel had permitted large presence mecca, become a meeting for disenchanted too place, many hippies; hip- were in the central pies city’s lounging Throughout city park. plea makes clear that Carmel as the threat perceives hippies, hippies, To avoid the destruction that public Haight- befell property. assertedly at the hands Ashbury of the Carmel was Berkeley hippies, compelled to legislate them—to against prohibit sitting at the other where choose to public places they congregate.
We recall Justice Murphy’s description goal discriminatory California’s Alien Land Law: “The more basic of the statute was purpose to irritate the to make economic life in Japanese, California uncomfort able and for them as It was thus but a unprofitable legally possible. step in the long discourage from California campaign entering Japanese and to drive out (Oyama those who were there.” already California (1948) supra, 332 249, 264], Justice Murphy case, In concurring.) the instant of section appears 697.02 is to irritate youthful and make their existence in Carmel as uncomfortable as to them effective use of those possible closing where places choose to congregate. discriminatory purpose underlying
We conclude That would be so even the section did invalidates the measure. 697.02 official using not have a discriminatory By Municipal predictable impact. a social its members as Code out language single stigmatize council violated the constitutional “undesirable” “unsanitary,” Council of the laws. The Carmel guaranty equal protection define term to limit the made no effort to so as “hippie,” application Rather, are conduct. illegal its hostile rhetoric to who engaged persons Carmel reference to the entire class of youthful the council makes pejorative mode of dress and life differ from and irritate the style visitors whose of the residents and tourists in city. majority ordinance, the Carmel not overlook its construing probable subsections Although impact. operative prohibit Carmel’s officers and grass misusing public police property, the council’s clear unlikely ignore legislative prosecutor expression officials for the in the Declaration of Those Urgency. responsible enforcement of the law are on notice that the put is in imminent because of the influx of class danger particular which the ordinance is directed. The inevitable effect must be unmistakably enforcement consistent the discriminatory the council: the will direct their efforts to the task of expressed police and the Carmel’s menace of ridding hippies, *8 the attack source effectively will use his discretion to most public prosecutor the council. described by city problem 1969) (W.D.N.C. In Wheeler v. Goodman 306 F.Supp. which,
federal court invalidated a and overbroad statute vague vagrancy used harass a while was vagrants generally, being phrased apply of resident The court moti cogently analyzed group hippies. probable vation of the statute against police vagrancy hippies: applying “Here real (to offense consisted of their being plaintiffs’ police) hippies. ... It was to initiate action that seemed enough police plaintiffs oppressive (Id. 62.) undesirable’. . . .” at before us the ‘vaguely In the ordinance undesirability was recognized by legislative body expressly in terms which could In its own hardly ignored revealing by police. predilections means of dis by legislative the council mandated language, criminatory enforcement law enforcement by agencies. Parr, a beyond arrest of Mrs. merchant assert that the
The People Be- of the ordinance. demonstrates impartial operation bloom youth, we need have no we told apprehension cause Mrs. Parr is a hippie, singled efforts direct their enforcement against will police fact countervailing But we cannot overlook out by legislative body. merchant, a Parr, and a was also Mrs. a resident though participant 697.02; indeed, her conduct to section object called to meeting act of intentional of the ordinance was an in violation grass Therefore, allegedly associated with species Mrs. Parr was protest. council, although by and undesirable transients condemned unsanitary have her suggested her age, theoretically might occupation, appearance im- Furthermore, incident of calculated exclusion. single perhaps com- virtually of an ordinance which partial by application preamble the ordinance. mands does not suffice validate enforcement 697.02, we are mindful of section assessing probable impact likely ordinance will which the discrimination private against hippies U.S. 267 L.Ed.2d foster. In Lombard Louisiana convic- reversed trespass the United States Court counters lunch tions rendered black segregated youths sitting-in was at the counters that the racial ground discrimination private the sit-ins. “As coerced condemning comments of officials city published statements, here determined the New they Orleans officials’ interpret service seek Negroes desegregated would not permit continuance . . here to direct restaurants. . The official command was restaurants, directed conduct segregated any service in and to prohibit convictions, Therefore, com- toward its . these discontinuance .... . . service manded as were the voice of the State directing segregated *9 870 342- restaurant, at L.Ed.2d at (Id. cannot stand.” 273-274 pp. pp. of statements
343].) Thus, court viewed impact an ordinance as to and the mayor equivalent superintendent police concluded that restaurant service and private establishing segregated to declarations those authoritative restaurant owners were coerced by exclusionary maintain an policy. bar, Carmel,
In accom- the case at Council of in official City language ordinance, of tran- a branded an undesirable as panying hippies Lombard, in sients whose threatened of the As city. presence well-being are read the their duly citizens to ordinance adopted by public spirited likely calcu- constituted as a mandate efforts body governing private perfervid in lated other services to the “offenders.” If the deny hippies presence Carmel is be residents of the city as the ordinance discouraged, implies, it to be their civic may duty perceive campaign. cooperate current not determined a consensus of are Constitutional questions by (1908) 208 (Muller Oregon public opinion. Mulkey v.
551, 555, 324].) We reminded of our decision in are 28 S.Ct. Mulkey (1967) Reitman v. supra, Cal.2d affirmed Reitman 14 denied 369, which we held that 387 U.S. in equal protection Proposition circumstances blacks that initiative measure was under because passed Neither encouragement of racial discrimination. state private constituting of the the United States Court were misled by nor phraseology of free neutral of the measure suggesting recognition principle initiative case, effort to instant we are faced with a less subtle legislative choice. minority discrimination the members of cultural encourage against private Here, of neu- life is whose to the style appearance disturbing majority. subsections, but is from the general derived trality language operative achieved the hostile tone and the critical by discriminatory impact to one directed accompanying descriptions segment society clause. at the
Since constitutional verities are most core of issues frequently dimension, when monumental certain insouciance is understandable undertakes insig- Carmel what to some seem comparatively nificant in But we act of nonresident from preventing park. avowed, be indeed the and the cannot oblivious transparent, an ill- the ordinance to discriminate inevitable effect of question: whose fathers. defined social caste members deemed by pariahs court This has been racial consistently vigilant groups protect effects of and we can no less concerned because the official prejudice, human are identifiable attitudes disfavor dress and beings currently rather than color. hold
We ordinance 697.02 to be violation equal protection Amendment. Fourteenth clause court to issue the order is reversed with directions to superior per- writ of
emptory prohibition prayed. *10 Sullivan,
Peters, J., Tobriner, J., J., and concurred. BURKE, J. dissent. The I ordinance in constituted question proper exercise aimed at and Carmel’s police power preserving protecting and other from and destruction. That ordi parks injury nance, alike, to residents and transients should not be rendered applicable and unenforceable because the council cer nugatory merely maligned tain members of the reasons which society explaining justified giving ordinance immediate effect. all,
First of do not majority to Carmel’s to purport challenge power enact an ordinance the use of its and regulating other parks public property. Indeed, it is well settled that such ordinances are valid “to the extent neces to sary interference with the interest in prevent municipality’s protecting health, public order or in the efficient and safety, use of assuring orderly streets and (In for their re parks Hoffman, Cal.2d 67 primary purposes.” 845, 97, Cox, 849 cited; 434 P.2d Cal.Rptr. and cases [64 see re ante, 205, 24, 992]; 218-220 pp. 474 P.2d Walker v. Cal.Rptr. [90 Birmingham, 307, 388 1210, 1216, 1824]; 315 L.Ed.2d 87 S.Ct. [18 Poulos v. Hampshire, 395, New 1105, 1113, 345 U.S. 405 L.Ed. [97 760, York, 987]; S.Ct. 30 A.L.R.2d 290, v. New 340 U.S. Kunz 293-294 280, 283-284, L.Ed. 312]; 71 S.Ct. Cox Hampshire, v. New 312 U.S. 569, 1049, 1052, 1396].) 133 A.L.R. Accord our state ingly, Constitution and statutes bodies expressly permit municipal to enact ordinances conduct regulating and other affecting public parks pub lic (See Const, 11; property. XI, Code, Cal. art. (c); Pen. subd. § § Code, Pub. Res. 5193.) § case, council
In the instant declared that Carmel’s parks cases, use,” unfit beaches were “in rendered for normal many were that unless the ordinance in “the use and question adopted, enjoyment if not will be eliminated.” jeopardized entirely According was to accommodate small city, park question due but that to the influx of “the mass of human- groups people, “hippies,” that smothered the numbers.” For ity grass by very occupied park discussion, true; we must facts to be foregoing purposes presume indeed, the concede that majority Accordingly, apparently point. por- which
tion of the ordinance prohibits persons the grass.1 lawns is a reasonable and means clearly proper protecting is void “on Nevertheless, that the ordinance conclude majority face,” disclosed d’etre” reason of the “hostile raison assertedly solely by According declaration the ordinance. of accompanies tone of to assume from the hostile are entitled solely majority, itself, “the declaration, the words of the ordinance contrary in their sections of the statute are intended to limited operative see, runs counter to every As we shall this doubtful premise application.” ordinances, review of statutes or rule and judicial presumption applicable continued acts damage the unfortunate effect of sanctioning has destruction to Carmel’s parks property. it is clear that in
Initially, constitutionality legislation, ascertaining *11 which to its en courts should not to determine the led motives attempt actment, even an motive not render void an otherwise for will improper (United O’Brien, 367, L.Ed.2d valid law. v. 383-384 States 391 [20 Brock, 672, 683-684, 1673]; Gas etc. Assn. v. 39 88 S.Ct. Serve Yourself Sumida, 813, 388, 545]; In re Cal. P. Cal.2d 819 P.2d 177 390 [170 [249 823].) which the majority rely, This made article point.was upon wherein the authors state that “the consideration of is by complicated motive fact it law which is the of a that is for a altogether possible expression which, be good forbidden motive to be a law. What is to done with a law motives, with the of still makes a contri most passed questionable positive bution to the decides to ‘get’Standard good? Legislature Suppose Oil, Lovett, Petrillo, or a law which hits all or but does so through monopo lies, added; (Italics or all labor unions.” Tuss government employees, tenBroek, Equal man and Protection the Laws 37 Cal.L. of 341, 360.) case, In the instant even if we that Carmel’s Rev. assume ordi (or nance was enacted to at least to them off the “get” get grass), hippies that ordinance its terms its by “any person” violating provisions. applies motives, law,” “good its is the words of assertedly spite improper Messrs. Tussman and tenBroek. course,
Of
rule does not
the courts from
foregoing
prevent
examining
the immediate
and ultimate effect of
objectives
legislation
purposes
its
and laws which have a clear
determining
discriminatory
validity,
(fn.
suggest
4)
significant
majority
1 The
that
it is
does not
that
However,
prohibit standing
running
grass.
city
legiti
or
council could
greater
grass
mately
danger
suffocating
conclude that the
would
“
recognize
Legislature
degrees
‘The
free to
thereon.
...
harm
regulation
and to confine its
to those
of cases in which the need is deemed to
classes
H.,
(In
76,
Ricky
513,
Cal.Rptr.
re
be the most evident.’”
2 Cal.3d
521-522 [86
204],
case.)
quoting
earlier
468 P.2d
and effect will be held invalid
(See,
denial of
e.g.,
equal protection.
Reitman,
529,
Mulkey
881,
v.
64 Cal.2d
533-536
413 P.2d
Cal.Rptr.
[50
825],
830,
affd. sub nom.
Mulkey,
Reitman v.
L.Ed.2d
The majority foregoing presumptions, instead that the officials and law enforcement officers would city presume or will restrict the of the ordinance to have restricted applicability However, even the declara- is not only. premise remotely supported tion of The declaration recites majority rely. upon simply which induced to conclude that the ordinance should take im- facts effect, (i.e., mediate had become inundated namely, by persons who were Government Code section “hippies”) destroying public property. *12 to state “the facts in order required city urgency” constituting ordinance to take effect The council permit city complied immediate section, facts, stated the and enacted an applies to, and any person is enforceable who violates its Neither against, provisions. council, itself, inhabitants, nor its city should and penalized their ordinance rendered void because the declaration totally harm- merely characterized as and lessly, though “undesirable” “unsani- unfairly, perhaps who, conduct, those tary” created the situation urgent which the ordinance was to correct. In the absence of evidence any them, whatsoever that Carmel’s ordinance has been unevenly applied and in the face of a it seems contrary, presumption apparent is majority’s unfounded. holding totally course,
Of invalidate, unfortunate result of this rash is to in its holding entirety, needed aimed at comprehensive urgently legislation preserving one of California’s most attractive communities. do Although majority state, not so it seems in their contention that Carmel implicit ultimately undo taint created its declaration the ordi- urgency by repealing declaration, nance and and thereafter identical in its enacting legislation without references to the visitors of place, whom the derogatory youthful unthinkable, to be so solicitous. To rule would be majority otherwise appear from ever for we would tie Carmel’s hands indefinitely prevent which, from an assault dec- giving city’s protecting parks deserves, imminent, laration the credence it continuing devastating. Thus the ultimate effect of the in this case will be to majority’s holding reenact, of Carmel to the same require repeal, thereupon view, ordinance. In the Constitution does not such my require unproduc- tive result. J., McComb, J., C.
Wright, concurred.