Perlman v. Municipal Court

Dist., One. Dec. No. Second Div. 54725. 1979.] [Civ. al., et PERLMAN

MICHELL FLORENCE Respondents, Plaintiffs and THE LOS ANGELES FOR COURT

THE MUNICIPAL COUNTY, LOS ANGELES OF JUDICIAL DISTRICT Respondent; Defendant and PEOPLE, Appellant. in Interest and Real Party

THE Counsel City Attorney, George Pines,

Burt City Eskin, C. Chief Assistant At- torney, City Attorney, McConnell, Ward G. Assistant and Rand Deputy City Attorney, Party Schrader, Appellant. for Real in Interest and Barry Fisher, Larry Moest, A. Robert C. David Grosz and J. Roberts Respondents. for Plaintiffs and appearance Respondent.

No for Defendant and Opinion appeal

HANSON, J.The of the State of California a from judgment Superior granting pe- Angeles County of the Los a remptory prohibition proceeding municipal writ of as court charging Perlman, Leavitt, Michell Christina Florence Sandra Dimock Mary Demperio, Fowler, Patricia J. Rosalie Borthwick and Mirian (hereinafter defendants) collectively Briks referred to with a viola- (hereinafter Angeles tion of Los Code section 44.12 referred 44.12) by soliciting to as section contributions.

Facts complaints separate 1977, criminal 23, were filed On December charging with violation section the six above-named defendants soliciting card, 44.12, contributions without an information charitable defendants, of the Hare The six who are members misdemeanor. Angeles soliciting sect, Los Interna- were contributions at the Krishna Airport. tional respective January six demurred defendants

On complaints against The court overruled their trial filed them. criminal setting proceedings disposition were set for for or trial demurrers petition February filed their defendants 28, 1978. On March per- petition superior prohibition not court. The in the for writ of by sonally a verification on information but bore verified defendants It their counsel. was “for the sake of convenience” and belief made upon grounds alleged the same raised defendants relied therein namely, municipal municipal court, ordinance under in the complaints brought be- is unconstitutional on its face were which the specific protect provides standards to narrow cause it neither issuing arbitrary against licenses for exercise official process procedural safeguards to in- solicitations nor due charitable process by judicial review of administrative due is satisfied sure that The; petition to the include uncertified and action. various attachments complaints charging unsigned copies of criminal defendants. superior granted writ and to show the alternative order court scheduling hearing March 1978. On in the matter cause issued grounds, Angeles Attorney demurred on March pleaded allegations alia, were not and filed an an- inter that essential including general special allegations denial of all of the a swer reply. petition. filed a No eviden- March the defendants On hearing. tiary was introduced at the material People’s Judge Following hearing the in the matter Pacht overruled petition the and ruled that section 44.12 unconstitutional demurrer to purports vague insofar as it its in that it is and overbroad on face protected by activity generally First Amendment to the the deal with (1976) Hynes Mayor citing Constitution, Oradell United States 243, 248-249, and Bur L.Ed.2d 96 S.Ct. [48 1755], 425 U.S. (1968) Cal.2d 696 ton v. pe petition granted Accordingly, was and a the 441 P.2d 281]. People appealed judgment. remptory this writ The have issued.

Issues (1) petition prohi- People appeal for writ of on contend allegations fatally and its were thus bition inadequate defective form support judgment; the the charitable solicita- (L.A. City Angeles Code, Los Mun. tion ordinance of the referred to as the charitable solicitation or- 44.01-44.20 §§ [hereinafter it is not because is neither nor dinance]) vague unconstitutional overbroad, no in administrative officials to refuse vests to issue information cards.

Discussion Upon authorities the reviewing constitutional relevant provi- (hereinafter sions of the Los Code Angeles Municipal referred to as the code), municipal we conclude that the charitable solicitation ordinance is neither vague nor overbroad. Neither is the requirement those who wish to solicit such contributions obtain an card information (which is in essence an permit) unreasonable exercise of the police power of the city. (Gospel Angeles Cal.2d P.2d 704].)

With respect to the issue first raised we note that by the petition for the writ was not verified. A writ of properly pro hibition “is issued the verified upon petition person beneficially (Code Proc., interested.” Civ. The requisites for verifications § are set forth in Code of Civil Procedure that, section which directs circumstances, absent extenuating shall be verified pleading by party An litigant.1 attorney may verify a with the pleading following limitations: verification may made by .when attorney,.. “[T]he is absent from party or from county, some cause unable to [is] verify the pleading, presence and in the of either of these conditions the verification be made may on information attorney... or belief. Or, if the facts are within the knowledge attorney..., may [he] verify without pleading to the existence of regard such condi (Bittleston tions. ...” (1916) Law etc. 357, v. Howard 172 Agency Cal. 361 P. 515].) When an has verified the as attorney pleading with [156 in his own and also on knowledge information and belief but without the it stating reason was not verified the the by court party, may permit Howard, (Bittleson the to stand. pleading Law etc. Agency v. Dist., 360;

172 Cal. at p. Oak Grove School v. Title Ins. Co. (1963) 217 708 Cal.App.2d Cal.Rptr. 288].) [32 provides, 1Code of Civil Procedure in pertinent part: “Every pleading section 446 verified, by party attorney.... shall subscribed the or his a pleading is it [W]here by parties shall be party, county the affidavit of a unless the are absent from the where office, it, attorney verify the has his or from some cause unable to the facts are [are] attorney... knowledge pleading by within the of his When the is the verified attor ney, why by ... he shall set forth the affidavit the reasons it is not made one the 574 the case, by was verified for the writ petition the instant the

In that did so with the he allegation and belief attorney on information no time claimed that has at The attorney “for the sake of convenience.” therefore does not The pleading the own knowledge. facts are within his ” . matters covered. .. truth of the “an the verifying affidavit qualify (1979) 88 (Star Court Superior Inc. v. Cal.App.3d Motor Imports, based on infor It allegations contains Cal.Rptr. 721].) 204 [151 to the why parties statement as with an insufficient mation and belief Assuming verify pleading personally. were unable to which is verified accepts only trial court defect despite petition belief, to before the bring the petitioner’s duty on information trial court “to the ex used in the and papers court the records appellate (See relief.” proceedings justify understand the necessary tent Writs, (2d 1971) Witkin, Extraordinary Procedure ed. Cal. § p. all the proceedings . . even purport give

A “that. does not petition court, such of the af- pleadings, but portions had in the respondent only wants to direct our attention as the petitioner fidavits and proceedings (Rose P.2d Cal.App.2d Superior to” In the case present court. appellate 713]) subject rejection by a writ on the same petition they sought their alleged defendants were court where their demurrers municipal in the advanced grounds to rule on the merits order for the court superior overruled. In reasons the trial case, given it the record and by it should have before a peti- in this case defendants filed its decision. Since reaching court belief, no valid evidence was on information and tion verified only petition and it was entitled deny submitted to the court superior on of its insufficiency. grounds waived by defect was question The arises whether procedural ” (See, . . . e.g., to trial without proceeding proper objection.

People “by Ware 153].) Cal.App.2d Stafford since de- did not waive their objection argue they pointed insufficiency answer to the out petition they murrer and verification. the failure to allegations supply proper due to attorney by the the reason that made parties. the When the verification is .. [H].. [H] for office, he his from some other county the where has or parties are absent from it,. has attorney’s. . state that he read verify to .. such . affidavit shall cause are unable on is the matters therein to true that he informed and believes pleading and true; alleges provided that in such cases ground that the matters stated therein are that establish- considered as an affidavit declaration pleadings shall not otherwise be (Italics added.) ing alleged.” therein facts

575 However, a where fails to proper objection party verify plead (see, Witkin, (2d a motion is to strike 3 Cal. Procedure ing e.g., ed. 356, 862, 1971) 2466) Pleading, p. p. which be made may § § upon notice and extension of only timely provides hearing time (Code Proc., 435.) answer. Civ. neither Apparently parties nor § verification, focused this the court defective a matter which upon could been cured have or resolved court in the by superior course of the proceedings. Because defendants cure the may defect readily procedural by (Ware Stafford, 237; Fran

amendment v. supra, Cal.App.2d p. Tax Bd. chise Court (1975) Municipal v. Cal.App.3d Cal.Rptr. we are inclined to them 552]), that Accord give opportunity. we turn to the substantive ingly, guide superior issue court on remand.

The contend that the charitable solicitation ordinance (L.A. Code, face, Mun. 44.00 et is its seq.) constitutional on relying § Army v. upon Supreme California Court decision in City of Angeles, defendants, however, supra, 27 Cal.2d 232. The argue that that decision is no in view longer controlling of more recent cases First Amendment scrutinizing rights, those to due particularly relating so-called process safeguards and “standardless” statutes. licensing settled It is that beyond dispute the defendants have standing, on a proper petition, challenge the of the constitutionality ordinance. who could obtained “[Q]ne have a license for the call asking may into the whole scheme of when he question for failure licensing prosecuted ” Court, (Burton it.... Municipal procure Cal.2d is directed to the of the en challenge solely language “[S]uch ” (Dillon actment not to its in the case. .. . application particular Court (1971) 4 Cal.3d 484 P.2d Defendants attack the charitable solicitation ordinance 945].) arguing (1) careful that of First Amendment regulation activity requires judici (2) does due scrutiny; process al ordinance not include mandated the United States First safeguards Supreme cases; Amendment the ordinance unconstitu language the financial disclosure tionally vague; provisions ordinance constitute an unreasonable burden. the charitable decisions our review of ample provide guidance Court, Supreme In this the United States regard

solicitation ordinance. for in a down a statute found unconstitutional its over- decision striking solicitation, “The general broad on such observed: infringement interest, solicitation, the of which does not involve in regulation, public or the col test does obstruct religious unreasonably delay and not any funds, even though of not constitutional open any objection, lection would not con the a Such religious purpose. regulation collection for the free exercise of religion stitute restraint on prohibited previous (Cantwell exercise.” v. Con an inadmissible obstacle to its interpose 60 S.Ct. 310 U.S. L.Ed. necticut [84 doubt a State may It was further noted: 1352].) A.L.R. “[WJithout requiring stranger citizens from fraudulent solicitation by its protect for him to solicit funds publicly the before community, permitting in act the his to establish his purpose, identity authority any (Id., at fn. omitted. p. he represent....” cause purports [84 1219].) at p. L.Ed. in in

This with decision approval subsequent was passage quoted 243, 96 (1976) 425 U.S. 610 L.Ed.2d v. Oradell Hynes Mayor [48 of case as de court in instant superior S.Ct. relied 1755], upon by the ordinance herein. of the unconstitutional of vagueness terminative The ordinance However, distinguishable. ordinances clearly are can regulated political religious in found unconstitutional Hynes solicitation, door soliciting Hynes as well charitable vassing, ma for the speaking Justice political campaign. Burger, to door in his not that does vest drawn narrowly noted: jority, “[A] what messages undefined to determine municipal power officials the interests without hear, running will serve these important residents may (Id., 251].) at p. L.Ed.2d p. afoul of the First Amendment.” that, as it is discloses insofar applicable, A careful of reading Hynes held to be con ordinance previously the charitable solicitation supports the ordinance constitutionality of Gospel Army. stitutional v. Army City through Gospel well California authority established by Supreme and the California Cal.2d Angeles, Los lie within recent clear statement charitable solicitations regulation to reasonable police power subject domain of are (1978) 21 577 P.2d Cal.3d 158 (People Fogelson 677]). cases,

From the challenged we derive the criteria for scrutinizing First, must vest no discre be constitutional ordinance. ordinance to (Matter Dart Application official or licensing agency tion Angeles, P.63]; 172 Cal. 47 [155

577 232) supra, 27 Cal.2d clear, unless such is bounded defi by (Staub nite City objective (1955) Baxley guidelines v. 355 313, 302, 321 310, 277]; Burton Municipal L.Ed.2d 78 S.Ct. v. [2 Court, Court, supra, 68 Cal.2d 684, 689; Perrine v. (1971) 5 Municipal 656, Cal.3d 320, 661 Cal.Rptr. 488 P.2d If 648]). such discretion is [97 authorized by the it must include sufficient due safe process (Freedman guards insure a swift and adequate remedy by appeal. v. Maryland (1965) 649, 380 U.S. 51 Burton L.Ed.2d 85 734]; S.Ct. [13 Court, 684, v. supra, 68 Cal.2d where the or Finally, disclosure, dinance requires financial such disclosures must be (See, reasonably related to of the purpose ordinance. e.g., Buckley v. Valeo (1975) 1, 659, 711-725, 424 U.S. 60-84 L.Ed.2d 96 S.Ct. [46 disclosure in [upholding requirements political a form of activity, 612] First Amendment activity more than generally highly protected reli Parrish v. Civil Service Commission gion]; 260, 66 Cal.2d 271 223]; Britt Cal.Rptr. 623, 425 P.2d v. Superior 20 Cal.3d EP574 P.2d 766].) Thus, we discretion, reach the threshold How much if question: any, is vested in the Justice licensing official? the iden Traynor considering tical ordinance2 in Gospel Army supplied answer: “[T]he cards, solicit, information which are in are permits effect issued automatically upon of the and the filing required information pay ment of the four cents for each card. no department given such cards these are authority requirements withhold when met. . . 232, 238-239, (Gospel Army Angeles, supra, 27 Cal.2d added.) italics defendants would no Gospel Although argue stand longer constitutional muster under the in rigid scrutiny required First Amendment cases which more severe than it was in today, on, cases numerous First Amendment relied most recently Fogelson, rely decision 21 Cal.3d upon Gospel Army with the issue of the of discre respect decision exercise by tion agency. requiring this to ordinances

“In principle specifically applying this rights, of First Amendment issuance of for the exercise permits Constitution if not offend the concluded such ordinances ‘will court time, such ex- and duration manner they regulate place, only [of had diluted the argument contended that amendments made oral it was 2In however, shown, Army. been authority holding It has incorpo but were existed in 1945 solicitation ordinance amendments to the charitable specifically approved were in a provisions Since these separate in a ordinance. rated vigor precedent. Gospel Army, the has lost none of its page case footnote within the administered officials if are pression] they fairly hand, any procedure On the other limited discretion. range narrowly in grant wide or which officials unbounded licensing allows it permits infirm because constitutionally or ing denying permits ideas sought on the content them to base their determination Court, (Dillon 4 at pp. Cal.3d 869- supra, v. Municipal be expressed.’ Court, at 870; p. 11 Cal.3d 84 supra, v. see also Dulaney Municipal P.2d 1].) 520 Cal.Rptr. [112 the issuance of or permits schemes governing

“Numerous regulatory offi licensing failure to provide licenses been invalidated for have definite, for issuing objective guidelines cials with the requisite a vague down include which have been struck licenses. Those measures canvassing house-to-house notice ordinance regulating worded ly Oradell, 610); a 425 supra, vague v. U.S. solicitation (Hynes Mayor of State, (Schneider v. similar solicitations measure licensing controlling 147); distribu permit governing 308 a standardless supra, system (Lovell at Griffin, supra, p. v. 303 U.S. tion of literature in public permit arrangement governing L.Ed. standardless 953]); at p. Court, (Dulaney Municipal supra, v. of bills on posting utility poles for book store 80); oper 3d at a standardless license requirement Cal. p. (Perrine (1971) 5 Cal.3d v. Municipal ation scheme mo 648]); vague permit governing 488 P.2d Court, (Burton 68 Cal.2d at supra, v. Municipal tion picture projection (Dillon v. 692); scheme regulating parades and a standardless p. permit Court, su Fogelson, 4 Cal.3d 870).” at v. (People p. supra, 158, 166-167.) 21 Cal. 3d pra,

Since it is established that no discretion in the vested licens official under ing charitable solicitation cards, for, information once must issue within 10 applied automatically it is days, clear this ordinance are provisions distinguishable from the innumerable ordinances which have failed to muster pass on issue on of either grounds provide failure due constitutionality Moreover, process or since this safeguards ordinance is “vagueness.” confined to the of charitable solicitations regulation only, specifically exempting solely made re evangelical missionary “‘[s]olicitations (Gospel Angeles, supra, ligious purposes’...” 232, 242), not, face, Cal.2d it does on its under sweep its control activi ties such which receive more political canvassing protection liberal under First Amendment Defendants declare principles. specifically they do not raise in this the question of whether the proceeding specific ac- in which in character so that it they might tivity engaged religious not, event, from the excluded scheme which could regulatory any id., (See be determined without showing upon an trial. evidentiary 250; 158, 168-169, p. 21 Cal.3d conc. Fogelson, opn. supra, Clark, JJ.) Mosk and by we

Finally, note that the financial the ordi- disclosures required decision, nance were in the approved Gospel Army and are reasonable Commission, under the standards set forth in Parrish v. Civil Service 66 Cal.2d 271. Upon the ordinance we conclude: reviewing (1) The disclosure are requirements related to the reasonably purpose of the to detect and from regulation—namely, protect the fraud- public solicitations; ulent the value to the in public that their insuring charitable donations will be as on distributed indicated the information cards outweighs burden of disclosure of those who intend required solicit; and the minimal requirement of information for providing public disclosure prior to solicitation not is burdensome pub- where the lic has agency no discretion to invoke restraint. The prior argument defendants that criminal and civil statutes for fraud serve the same pur- pose render the provisions ordinance unnecessary the ex ignores post facto nature of such This any penalty. regulation, by insuring each member of the public will receive information at the time of the solicitation, insures the person solicited will have the opportunity to an make educated choice conclusion, whether not to contribute. In it appears beyond doubt that (L.A. charitable solicitation ordinance Code, Mun. 44.00 et seq.) is on constitutional its face. §

Disposition The order (judgment) is reversed and the writ is remanded to the su- perior court with leave to defendants to amend to cure the defect in the verification of their petition. The superior court instructed to there- after enter in accordance with views judgment expressed. herein

Lillie, J., Acting P. concurred. ROTHMAN, J.*I concur because we are bound to follow the author- in ity Supreme Court Gospel Army Angeles (1945) 27 Cal.2d 232 P.2d In Gospel Army, Supreme 704].1 *Assigned by Chairperson of the Judicial Council. accept jurisdiction. superior 1An inferior court must the law as declared a court of Sales, Court, Equity Superior

Auto 57 Cal.2d Inc. 937], P.2d on its constitutional issue herein ordinance at Court found the divided in 1945 aby sharply the decision face.2 the rendition of Since Court, developments have been major even there though Supreme the First under protected activity applicable in legal principles as existed in it of the ordinance copies on contains appeal 2The record except they are identical reveals that Comparison of the two ordinances today. exists justify These listed below. differences cannot in the sections differences for the minor changes ordinance. inapplicable because conclusion Differences 1979 Ordinance Ordinance Change in of endors- 44.01 name 44.01 Section agency “Promoter” ing paragraph. (b) phrase 44.02 In subsection 44.02 Section permit added to not has been publish investi- the Board misstatements, gation deceptions and frauds. (c) powers subsection (f) (d) (e) re- have been moved from this section 44.03, added to to section as (f) (h) (i) (g) subsection respectively. Depart- 44.03 The Powers of Section 44.03 expanded have been ment subsec- the addition of four (see from 44.02 tions above.). section There are changes number of from “Board” to some “Department”, changes in numbers of cross referenced sections. (j) au- subparagraph Added thorizing Department to about public inform the expend charities /2 proceeds by a Los An- their geles governing based board. (k) au- subparagraph Added thorizing the Board survey of charities maintain city. changes “Board” Some from 44.06 Section 44.06 “Department.” changes 44.09 from “Board” Some Section 44.09 “Department”. overruled, Amendment, questioned has never been Army Gospel (1978) 21 Cal.3d page as recently Fogelson P.2d Court cited it.3 677], Supreme explained Because the lead here has thoughtful opinion correct, but I to add view that my is not feel only binding obliged decided.4 but Gospel Army binding probably wrongly In an ordinance “... The crucial factor here examining the validity our within the protection zealous solicitude for rights falling

1945 Ordinance 1979 Ordinance Differences Section 44.13 44.13 word “Television” added. changes Section 44.16 44.16 Some from “Board” to “Department”. Section 44.19 changes 44.19 Some from “Board” to “Department”. Increase in size of Bond in (3) (a) (b).

section & charged Increase fees promoters solicitors and (4), (d) subsections & 9 (f). 44.20 Provisions on endorsement procedures added. These sec- part tions were in another of the Municipal Code in practically and were cal identi- to the present section. (See Gospel Army, fn. at p. 3Fogelson April was decided and therefore judge the trial did not have the advantage of this citation he made April when his decision on 1978. decided, 4Even when it was two wrong. Justices felt was In Justice Carter’s dissent he majority’s criticized the view that the collection activities there were not within the religious exemption. He also found that unduly the ordinance was onerous on the charity would-be in the breadth detail of the required get information permit, a and the power felt, unbridled promoters. over so-called The application, effect of its he institutions, organized could drive out all but and the ordinance was more than the ap proved time, simple regulations of place (27 250-276.) manner. Cal.2d at pp. Justice Edmonds’ dissent focused potential on what he unjust felt and ar- bitrary ordinance, power abuse of in the especially and was burdensome on organizations that perpetually soliciting were pointed funds. He also City out that the could interfere with the solicitation burdensome information on the information card by publicizing or investigations. (27 results of 276-287.) its Cal.2d at pp. In of ordinances in considering First Amendment. constitutionality that involved here must be the “‘precision of of category regulation set must be ‘susceptible touchstone’”. . .and the standards forth therein . . is exacted because the precision measurement’. Such objective as the actual potently applica- ‘threat of sanctions deter almost as may A of decisions has held unconstitutional tion of sanctions.’... line long First Amend- of licenses conduct ordinances issuance governing excessive administrative officials were granted ment activities where (Burton or the license.” grant deny whether to determining (1968) v. 68 Cal.2d 690-691 441 P.2d 281].) re-

In Burton the Supreme Court held unconstitutional an ordinance which commission permit, police power quiring police gave In is- examining refuse where the business was a nuisance. public course, sues, are, those the instant presented by which different from A ordinance is un- went to add: “. .. an court on fortiori forth to circumscribe the constitutional if no standards whatever are set (Kuntz v. New licenses. discretion of officials granting denying v. New York 290; (1948) York Saia 334 U.S. 340 U.S. supra, 444.)” (68 558. . . Lovell .; Cal.2d at Griffin 691-692.) pp. 158, the Court held Supreme 21 Cal.3d Fogelson, supra,

In to so- requiring permit ordinance a Los unconstitutional Angeles Airport. International licit on there the property, Angeles city rule reasonable regulation: out the again applicable governing court set freedoms, constitutional- including First Amendment “... in the area of must be solicitation, of regulation touchstone ly forms protected state closely permissible standards related drawn precision—narrowly (P. 166.) interests. ...” fraud, interest, but prevention noted was

One such state court officials licensing “‘. . . which allows pointed procedure out that: [A]ny or constitu- permits denying wide or unbounded discretion granting it to their determination on infirm them base tionally because permits (Dillon Municipal of the ideas sought expressed.’ the content Court, (21 166.) .)” Cal.3d at In 4 Cal.3d p. .. 869-870. supra, pp. it abso- said that had court holding ordinance unconstitutional their exercising officials licensing no standards lutely guide “un- that officials gave and grant applications, or deny bridled power to prohibit constitutionally protected forms solicitations. ‘Since statutes which accord officials excessive discretion face, are fortiori, unconstitutional on their those which vest unlimited to issue discretionary power or deny permits in First Amend engage ment (Perrine Court, activities are unconstitutional.’ v. 662). . ."(21 5 Cal.3d at p. 167.) Cal.3d at p. court Finally, out expressly pointed that “commercial is not speech” ordinarily pro tected, unless the sales involve literature protected or or the speech, (21 communication of 165.) ideas. Cal.3d at p. to the

Turning ordinance here in question, section 44.19 details the regulations on licensing promoters (anyone who solicits “for pecuni- ary compensation consideration”). or The Supreme Court in Gospel found these regulations to be valid even though allow they abso- lute discretion to refuse a promoter a license if the department is not satisfied as character, to the good reputation financial responsibility of the promoter. The Supreme Court said that officials had “no discre- tion to withhold a license if the applicant’s character good ” reputation and his financial are (P. . responsibility established... 249.) In view my this would not analysis (See stand scrutiny today. Oradell, Hynes Mayor 425 U.S. fn. at p. 613 L.Ed.2d 243, 249, 96 S.Ct. see 1755]; also Schneider v. New Jersey, L.Ed. 60 S.Ct. 146].) also drew Gospel Army distinction sharp between charitable solici- tations, which (See be less might protected, and solicitations. religious Cal.2d at p. noted, As already it is now beyond question that even commercial activities are entitled to the benefit of the First Amendment where the enterprise is engaged protected activities.

The lead herein opinion out that the points ordinance is confined to “charitable solicitations only” exempts “solicitations made solely evangelical, 44.16.) missionary religious purposes.” (§ find They this not, face, means that the ordinance “does on its sweep under its control activities such as political which canvassing receive more liberal under protection is, First Amendment think, This I principles.” an in- correct reading which defines “charitable” service, benevolent, “the words including philanthropic, social patriotic, either 44.01.) Thus, actual or purported.” (§ plain pro- language tected free speech expression are under its control. swept The fact the particular defendants in this case are not claiming a religious the dissemi- were in actually engaged that

exemption, alleging they ideas, is on the validity since our focus facial insignificant nation of is sweeps If on its face not its the ordinance of application. un- so to avoid it is not drawn narrowly in protected expression it (People of is unconstitutional. power, bridled exercise official 163.) who annoy airport patrons Even individuals p. Fogelson, supra, an from such entitled the Constitution’s protection for are to money ordinance.5

The finds this opinion lead that ordinance vests no discretion city Cards, for, officials: “the Information once must licensing applied issue is automatically within ten This statement based on one days.” where the Court the information Gospel Army Supreme explained cards, cards The in ef- under Section 44.03: “... information which are solicit, fect permits to are issued upon the automatically filing information cents required and the the four for each card. payment The these department given no withhold such cards when authority met, requirements are and we cannot assume that it will abuse its au- 238-239.) in order to withhold them. ...” thority (Pp. Supreme Court number of cases cited a California to the effect that no presump- tion exists that officials will and that if acted oppress officials people, could take “‘recourse to the whimsically applicant arbitrarily, (P. 239.) courts relief from such action.’” unjust arbitrary This when made. The dissent in proposition questionable out that the States had held Army pointed Supreme United not save relief did an otherwise unconstitutional judicial availability Connecticut, (See (27 280.) restraint. Cal.2d at Cantwell prior p. 1352].) L.Ed. S.Ct. A.L.R. But, assertion as this of the ordinance importantly, meaning more it, rest on dubious appears pre- unsupported by anything (or not act wishful that officials will sumption perhaps thinking) “auto- 44.03 itself does not mandate cards issue Section arbitrarily. service department vests in social merely matically,” certain issue to all Information Cards” containing “To solicitors power: (Subd. (d).) in the ordinance mandates details therein. Nothing listed escape may “That some fraud thusly in his dissent: 5Justice made this point Carter despite vol in all walks of life anticipated. is more or less true to be This detection is part wrongful channels of some protective legislation. But the diversion to umes of against the weighed when major catastrophe charity is not a public contribution rights." (Gospel large the bill of carving a slice from protection only by effected cost of Army, supra, p. 585 that the information cards be issued within set time any following of a notice filing of intention to solicit contributions. All ordinance is says that “at least ten to the of such days prior solici- beginning tation” the notice of intention must be filed. Yet no solicitation can take place 44.05), without first this filing notice of intention (§ without 44.12). an securing (§ information card

A similar exists in the area of the vagueness department’s power recall information cards. When receives additional information which “in the opinion Department, of shall render incorrect state- any card, 44.03, ment” on (h), the information section subdivision authorizes the department to “recall such Information Card and every amend or correct the same or lieu issue in thereof a new Information Card amended or corrected in with such accordance additional informa- tion.” Under such an order the solicitor is to return the obliged recalled information card within 48 hours of the There receipt notice. is noth- in the ing ordinance that can wait specifies long how department reissue an information card after it has been recalled additions or for corrections, nor is there to contest the procedure department’s “opin- not, ion.” This scheme of unrestricted discretion does on its statutory (N.A.A.C.P. face, appear to be a narrow regulation “with specificity.” v. Button U.S. L.Ed.2d 83 S.Ct. 328]; Oradell, Hynes see Mayor L.Ed.2d 243, 252-253].)

It should Army premised noted also be that its statement that no department had to withhold the cards on condition authority precedent “required that information” was filed with depart- Thus, ment. Gospel Army’s interpretation under department absolute to decide the “required whether given filed, information” exists for review has been and there no procedure that or other decision of the Since some offi- any board. department controls, cial can these no powers exercise with the constitutional missing. of narrow prerequisite specificity in Intern.

This sort was the which the failing basis ordinance upon Soc. Cir. (7th 1978), Krishna Consc. 585 F.2d Rochford 271-273, the regulation was held unconstitutional. It argued license, and no proce- no discretion to issue the therefore granted court said “... When the dural were needed. The that: safeguards whole, as a we find that the of denial of regulations possibility are read review exists. It follows that mode of must therefore some registration If the potential impinge upon be included. ... has First regulation must due procedural Amendment rights, regulation provide for Freedman (See Maryland, 271-272.) (Pp. process....” 734].) L.Ed.2d 85 S.Ct. the Su- petition plaintiffs respondents hearing by Newman, J., Court was 1980. preme February opinion denied should be petition granted.

Case Details

Case Name: Perlman v. Municipal Court

Court Name: California Court of Appeal

Date Published: Dec 11, 1979

Citation: 160 Cal. Rptr. 567

Docket Number: Civ. 54725

Court Abbreviation: Cal. Ct. App.