THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO FRANCO MEDRANO et al., Defendants and Appellants.
Crim. No. 8962
Third Dist.
Mar. 2, 1978.
A petition for a rehearing was denied March 20, 1978.
78 Cal. App. 3d 198
Jerome Cohen, Sanford N. Nathan, George C. Lazar, Mary H. Mocine, W. Daniel Boone, E. Michael Heumann and Glen Rothner for Defendants and Appellants.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Marjory Winston Parker and Roger E. Venturi, Deputy Attorneys General, for Plaintiff and Respondent.
Harry J. Delizonna, Dennis Sullivan, Ellen Lake and Manuel Medeiros as Amici Curiae.
OPINION
FRIEDMAN, J.*—Opinion on rehearing. Here we deal, first, with a claim that California‘s Agricultural Labor Relations Act of 1975 (ALRA;
A municipal court jury found defendants guilty of violating
The events are described in a settled statement on appeal. The incident occurred at a farm labor camp operated by Alphonso De Dios, a licensed farm labor contractor, on property leased from a third person. On the property were five buildings occupied by farm workers and their families. De Dios lived in a mobile home on the same premises. The property was surrounded by a fence. A gate which was usually unlocked provided entry. Several labor camps operated by other contractors were nearby. De Dios imposed no restriction on entry or exit of workers and visitors but did require solicitors to obtain permission to enter the property.
At the time of the incident, September 13, 1975, De Dios was absent from the camp and had left his son Robert in charge. Robert De Dios worked as a labor supervisor for his father and resided at another of his father‘s labor camps. In the late afternoon he saw two organizers for the United Farm Workers Union on the premises and asked them to leave. The organizers complied with the request and reported back to defendant Jan Peterson, the area supervisor for the union. Peterson had sent the organizers to De Dios’ labor camp after learning earlier that day that a representation election for employees of Vista Verde Farms had been scheduled by the Agricultural Labor Relations Board (ALRB) for the following day. Some of the occupants of De Dios’ labor camp worked for Vista Verde Farms.
Upon learning that the organizers had been asked to leave De Dios’ camp, Jan Peterson and several other organizers went to the premises, entered without resistance and began knocking on the doors of workers’ living quarters to inquire whether they were employees of Vista Verde Farms and whether they needed transportation to the polling sites for the coming election. Within a half-hour of their arrival Robert De Dios confronted them and asked them to leave. When Peterson, the spokesperson, rejected the request, De Dios telephoned the sheriff‘s department. Sheriff‘s deputies arrived within 20 minutes and conferred briefly with Peterson, who told them that the organizers were entitled to be on the premises. At about the same time defendant Francisco Medrano entered the labor camp. He too was an organizer for the United Farm Workers. The sheriff‘s deputies approached the group of organizers with whom Peterson was standing and asked them to leave the premises.
Three residents of the camp testified that they had not invited defendants to enter the premises on the day in question and did not consider them to be welcome. At trial both defendants testified that they had entered this particular labor camp without incident on earlier occasions. On the first day Medrano had gone to De Dios’ residence to seek permission to enter the camp but had found no one home. Jan Peterson testified that she had been at the De Dios camp on prior occasions and had always received a pleasant reception.
Counsel for the ALRB have filed an amicus curiae brief devoted primarily to the theme that union access to the farm labor camp was arguably protected by the ALRA, hence that the municipal court had no jurisdiction to try the trespass charge. Attorneys for the two defendants emphasize the claimed interference with free speech.
I
The lack-of-jurisdiction argument advanced by amici curiae is premised upon the “preemption doctrine” developed under the
In designating the NLRA precedents as guideposts, the ALRA apparently incorporates into California law the general features of the preemption doctrine. (United Farm Workers v. Superior Court (1977) 72 Cal.App.3d 268, 273 [140 Cal.Rptr. 87]; see also, Nishikawa Farms, Inc. v. Mahony (1977) 66 Cal.App.3d 781 [136 Cal.Rptr. 233].)
The enumeration of employee rights under statutes such as the federal NLRB and the California ALRA carries with it a statutory assurance of free communication essential to the realization of those rights; when organizing and choice-of-representative activities transport labor advocates onto the employer‘s land, the resolution of conflicting rights will be resolved by seeking a “proper accomodation” with the objective of inflicting “as little destruction of one as is consistent with the maintenance of the other;” subject to ultimate review, the labor board has preemptive jurisdiction to establish the accomodation. (Labor Board v. Babcock & Wilcox Co. (1956) 351 U.S. 105, 112 [100 L.Ed. 975, 982-983, 76 S.Ct. 679]; Hudgens v. NLRB (1976) 424 U.S. 507, 522 [47 L.Ed.2d 196, 208, 96 S.Ct. 1029]; Central Hardware Co. v. NLRB (1972) 407 U.S. 539, 544 [33 L.Ed.2d 122, 127, 92 S.Ct. 2238]; Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, supra, 17 Cal.3d at pp. 897-898; Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at pp. 404-409.)
The statutory assurance includes a ticket of limited admission to nonemployee union organizers; an employer may bar organizers from his property if other channels of communication are open to them; if the
An ongoing problem under the NLRA is whether the preemption doctrine ousts the courts of power to entertain civil or criminal trespass charges against union representatives who conduct activities on employers’ property. Amici curiae strongly rely on Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, supra, 17 Cal.3d 893. There the court nullified an injunction against union picketing on the employer‘s private property. Despite the trespassory nature of the conduct, it was arguably the concerted activities of labor protected against employer interference; hence it fell initially within the exclusive competence of the NLRB and displaced the jurisdiction of the state courts. (17 Cal.3d at p. 899.)
Out-of-state decisions have considered the preemption defense in criminal trespass prosecutions against union pickets. Two courts have rejected the defense. (People v. Goduto (1961) 21 Ill.2d 605 [174 N.E.2d 385] cert. den., 368 U.S. 927 [7 L.Ed.2d 190, 82 S.Ct. 361]; People v. Bush (1976) 39 N.Y.2d 529 [384 N.Y.S.2d 733, 349 N.E.2d 832].) Two others have accepted it. (Commonwealth v. Noffke (Mass.App. 1977) [364 N.E.2d 1274]; State of Maryland v. Williams (Balt.Crim.Ct., Md., 1959) 44 L.R.R.M. 2357, 2363.) The California Supreme Court has expressed its disapproval of the former view, its approval of the latter. (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, supra, 17 Cal.3d at p. 906, fn. 8; Musician‘s Union Local No. 6 v. Superior Court, supra, 69 Cal.2d at p. 712, fn. 8.)
II
We have concluded, nevertheless, that the ALRA did not vest the board with preemptive jurisdiction. The Sears decision involved a trespass on the employer‘s property. Here the trespass occurred on the
The settled statement on appeal declares that the events occurred at a labor camp housing agricultural workers “employed by [De Dios], a licensed labor contractor.”
The exclusion of farm labor contractors from ALRA coverage as agricultural employers reflects a deliberate legislative choice. The creation of stable collective bargaining relationships in agriculture is hindered by shifting employment and fluidity of the work force. To class farm labor contractors, along with farmers and farmer associations, as parties to collective bargaining would augment the difficulties. In the process of creating a collective bargaining relationship—from the initial organizing efforts, into the petition and election stages and ultimately to the contractual culmination—the statute views farmers or associations of farmers as the only employers (see
Amici curiae refer us to an ALRB administrative decision, holding an agricultural employer guilty of an unfair labor practice consisting of the action of a farm labor contractor at the latter‘s own camp without any instruction or participation by the employer. (Whitney Farms, 3 A.L.R.B. No. 68 (1977).) The board‘s holding categorizes the farm labor contractor as a “supervisor” and utilizes
In the present case, the union organizers’ exclusion from the farm labor camp was the action of a party excluded from the definition of agricultural employer and not acting on behalf of an agricultural employer. Thus, the exclusion was not an unfair labor practice as defined by
This conclusion does not rest upon statutory verbiage alone. It is necessary to know that finite words yield a result consistent with statutory design. The interest in uniform application of the ALRA tends to support the preemption of state laws which might conflict with its broad objectives. (Cf. Farmer v. Carpenters, supra, 430 U.S. 290.) We have observed that the enumeration of employees’ rights in
Here the trespass occurred on the property of a nonemployer. The law‘s exclusion of the farm labor contractor from the category of agricultural employers demonstrates that events on his land are not a significant concern of the ALRA.
Defendants assert constitutional as well as statutory protection for their entry. They contend that application of the trespass law closed a constitutionally protected avenue of communication between themselves and the workers living in the farm labor camp. In the absence of ALRA coverage of the labor contractor‘s enterprise, defendants’ constitutional claim represents the pivotal issue in trial and on appeal. The issue is whether the generally valid trespass statute may be constitutionally applied in the circumstances to bar defendants from addressing their message to the camp inhabitants.
At defendants’ municipal court trial, the court denied a defense motion for a directed verdict of acquittal and, over a defense objection, instructed the jury in the following terms: “Persons may enter upon private property without committing a trespass if (1) they otherwise conduct themselves lawfully; and (2) the private property has assumed to a significant degree the functional attributes of private property devoted to public use; and (3) the purpose in entering such private property is to [disseminate] thoughts or ideas relating to the property; and (4) there is no reasonable alternative means available by which the thoughts and ideas can be communicated to the persons on the property.”
Where, as here, the verdict of a criminal jury is drawn from undisputed evidence and incorporates criteria which are decisive of constitutional rights, those criteria form issues for adjudication by the reviewing court. (Drope v. Missouri (1975) 420 U.S. 162, 174-175, esp. fn. 10 [43 L.Ed.2d 103, 114-115, 95 S.Ct. 896].) Even when the resolution of constitutional rights turns on a factual dispute, the appellate court is duty bound to make an independent analysis of the record. (Codispoti v. Pennsylvania (1974) 418 U.S. 506, 517, fn. 6 [41 L.Ed.2d 912, 922, 94 S.Ct. 2687]; see also, Bachellar v. Maryland (1970) 397 U.S. 564, 566 [25 L.Ed.2d 570, 573, 90 S.Ct. 1312].)
Freedom of communication encompasses the right to receive as well as disseminate ideas. (Kleindienst v. Mandel (1972) 408 U.S. 753, 762-763 [33 L.Ed.2d 683, 691-692, 92 S.Ct. 2576].) Thus, in Thomas v. Collins (1945) 323 U.S. 516 [89 L.Ed. 430, 65 S.Ct. 315], the court held that a labor organizer‘s right to speak and the right of workers “to hear what he had to say” (id., at p. 534 [89 L.Ed. at p. 442]), were both abridged by a restrictive state law.
An intermediate appellate court is rash when it attempts to locate terra firma among these decisions, for they are featured by dissents and special concurrences, by temporary majorities and minorities, refined distinctions of fact, judicial disagreements over verbalisms of the past12 and by the semi-concealed thrust of competing social views. Nevertheless, appraisal of defendants’ free speech claim compels a formulation.
We draw the following four-part formula from the cited decisions: (a) The courts will attempt an “accomodation” or “balance” between free speech rights and the property rights of the landowner.13 (b) The owner‘s exclusionary assertions receive less weight when the private property
Defendants’ visit to the De Dios’ labor camp was characterized by factors soon to be superseded. Effective August 29, 1975, the ALRB had adopted its regulation granting farm labor organizers a qualified right of access to the property of agricultural employers. (
According to the settled statement on appeal, Jan Peterson testified that the ALRB had notified her on September 13 (a Saturday) of the Vista Verde Farms election to be held the next day (Sunday). It is undisputed that the camp inhabitants included employees of Vista Verde Farms. The settled statement on appeal reveals no evidence that between the times of the election notice and the election itself Peterson and Medrano had any means of reaching Vista Verde Farm workers except by entering farm labor camps where the workers lodged.
We discern no need for broad constitutional declarations anent outsiders’ access to the inhabitants of farm labor camps. (See United Farm Workers v. Superior Court, supra, 14 Cal.3d at p. 910 and cases cited; du Fresne & McDonnell, The Migrant Labor Camps: Enclaves of Isolation in Our Midst (1971) 40 Fordham L.Rev. 279, 287; Sherman & Levy, Free Access to Migrant Labor Camps (1971) 57 A.B.A.J. 434.) Confronting the idiosyncratic facts of this case and guided by the stated principles, a court may reach only one fair accomodation of the conflicting interests. The operator of the farm labor camp had invited farm workers as tenants of the property. Because these tenants had an interest in maintaining human relationships and communication with the world outside the camp, the camp operator had opened the camps to limited entry by social and business visitors of the tenants. It is not necessary to define the perimeters of the opening. It is sufficient to say that the tenants’ economic interests were intertwined with the collective bargaining choices confronting them the following day; that they thus formed an audience for information concerning these choices.17 As a candidate for selection as collective bargaining representative, the union shared with the tenants an interest in the exchange of information concerning the election.18 In view of the narrow time span between notice of the election and the election, subordination of the private property interest was brief and minimal. (See In re Zerbe (1964) 60
The jury instruction, moreover, was palpably erroneous. Confronted by a case involving unusual constitutional problems, a trial judge may be hard-pressed for adequate jury instructions. His difficulty is augmented when he is confronted with the self-interested instructions proposed by counsel. The instruction quoted earlier consisted of extracts culled from the majority opinions in Hudgens v. NLRB, supra, 424 U.S. 507, and Lloyd Corp. v. Tanner, supra, 407 U.S. 551. It is unnecessary to analyze it fully. As a condition of the free speech defense, it demanded that the purpose of defendants’ entry be the dissemination of “thoughts or ideas relating to [the labor camp] property.” As we view the instruction, it stimulated thought of the physical property rather than the people on it. As we view the Lloyd Corp. v. Tanner standard (see fn. 14, ante), the communication is eligible for constitutional protection when its purpose is related to the purpose for which the prospective audience has been invited onto the land. The phrase in question virtually withdrew one of the principal defenses from the jury‘s consideration. We have concluded that the trespass law could not constitutionally apply under the circumstances; hence we need not consider whether the erroneous instruction caused a miscarriage of justice.
IV
Medrano points to a lack of evidence that any of the peace officers requested him to leave. Deputy Sheriff Wells testified that he requested Jan Peterson to leave the farm labor camp and cited her after she refused; he had a conversation with Medrano, but did not testify that he requested Medrano to leave; he testified that Deputy Sheriff Evans talked with several persons on the scene and that Evans issued a citation to Medrano. Deputy Evans was not called as a witness. In his own defense, Medrano testified that after several of the organizers left the property, he remained to await instructions from Jan Peterson; that Deputy Evans came up to him, asked his name and address and issued a citation. He testified that none of the officers asked him to leave the property.
As
The settled statement on appeal includes no evidence from which the jury could reasonably infer that Wells, Evans or any other peace officer requested Medrano to leave. The absence of substantial evidence of an essential element of the offense supplies an additional, independent ground for reversal of Medrano‘s conviction.
The judgments of conviction are reversed with the instruction to dismiss the complaint.
PUGLIA, P. J.—I concur in the result and in the reasoning upon which it is based. However, I wish to disassociate myself from any implication in the court‘s opinion that there may be circumstances in which the provisions of the ALRA preempt the penal statutes of this state, specifically the criminal trespass laws. In the face of the ALRB‘s claim to exclusive jurisdiction over this controversy, it is enough to point out, as we do, that farm labor contractors are not agricultural employers and are therefore excluded from the scope of the ALRA. The observation that “the ALRA apparently incorporates into California law the general features of the preemption doctrine” (majority opn., ante, p. 205) is gratuitous, unnecessary, and of questionable validity.
PARAS, J.—I concur in the result and in that portion of the lead author‘s reasoning which finds the trespass statute unconstitutional as narrowly applied to the facts of this case. Additionally I concur in the
Preemption, as applied in the NLRA field, is rooted in the “supremacy clause” of the federal Constitution. It simply reiterates the fundamental principle that where the Congress has acted in a given area, within its constitutional purview (as for example under the commerce power), such congressional action is supreme over legislation of the states in the same area. (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 401 et seq., p. 2660 et seq.) The analogue of the federal principle exists between a state and its political subdivisions, such as counties and cities. Where state legislation has “occupied the field,” local ordinances or regulations purporting to contravene, or inconsistent with, such legislation are invalid. (5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 445 et seq., p. 3743 et seq.); stated otherwise, where a matter is of general or statewide concern, the Legislature has paramount authority. (Id., § 452 et seq., p. 3749 et seq.) Thus a sine qua non of preemption is the existence of two governmental entities, one of which is subordinate to the other in its lawmaking function. In the absence of two such bodies politic, preemption has no greater relevance than the rule in Shelley‘s case.
Once we recall this touchstone of preemption, we forthwith note that the doctrine is utterly meaningless here. The ALRA is a California statutory enactment of general and statewide application, as is the trespass law (
There is a second conceptual defect in the asserted applicability of federal preemption principles to this case, or to any other like it. The NLRA is a federal civil enactment, while
Unfortunately this aspect of preemption has not been discussed in any case I have read. Indeed, in all the federal Supreme Court opinions involving preemption only civil action of the state was involved. (See cases noted in 18A Kheel, Business Organizations (1973) §§ 9.03, 9.04.) The only cases dealing with federal preemption and involving criminal prosecutions were Commonwealth v. Noffke (Mass.App. 1977) [364 N.E.2d 1274], People v. Bush (1976) 39 N.Y.2d 529 [384 N.Y.S.2d 733, 349 N.E.2d 832], People v. Goduto (1961) 21 Ill.2d 605 [174 N.E.2d 385], and State of Maryland v. Williams (Md. 1959) 44 L.R.R.M. 2357. Noffke and Williams held that NLRA preemption applied, Goduto and Bush that it did not. But none of them addressed the conceptual difficulty of applying preemption where its effect is that federal civil legislation emasculates a state‘s penal laws. Nor did they consider that this has neither been done nor has been discussed with approval in any federal case.
I have concluded that preemption was never intended to go this far. My conclusion is bolstered by the repeated reservation to the states of their right to control and prevent violence in labor disputes. (See 18A Kheel, Business Organizations, supra, § 9.04.) In addition, I quote the following language of Justice Douglas, concurred in by Justices Warren and Black, dissenting in Auto Workers v. Wisconsin Board (1956) 351 U.S. 266, at page 276 [100 L.Ed. 1162, at page 1173, 76 S.Ct. 794]: “Of course the States may control violence. They may make arrests and invoke their criminal law to the hilt. They transgress only when they allow their administrative agencies or their courts to enjoin the conduct that Congress has authorized the federal agency to enjoin.” (Italics added.)
This is not to say that the enactment of civil legislation such as the NLRA or ALRA may not under certain circumstances have an effect upon local penal statutes. On the contrary, such a civil enactment may create a “privilege,” which furnishes a defense to a criminal prosecution. Or, there may be constitutional rights which the civil legislation seeks to further and promote, and which, as here, render the penal statute unconstitutional in its specific application to a given case. As between a
A petition for a rehearing was denied March 20, 1978.