BRAXTON v. PEOPLE

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Court of Appeal, First District, Division 3, California.

Johnnie BRAXTON et al., Plaintiffs and Appellants, v. MUNICIPAL COURT, CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent; PEOPLE of the State of California, Real Party in Interest.

Civ. 29607.

Decided: February 25, 1972

John Murcko, San Francisco, for appellants Johnnie Braxton and Wilfred Allison. Ronald Yank, San Francisco, for appellants Jonathan Dubose, Marc Zaler, and Kathryn Kelly. William Pinkus, Mill Valley, for appellants Laura Gladstone and Gary Barton. Evelle J. Younger, Atty. Gen. of California, Robert R. Granucci, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for respondent and real party in interest.

Complaint filed in respondent court charged seven defendants with misdemeanor (Pen.Code § 626.4) in that they entered upon the campus of San Francisco State College after being notified that consent to remain thereon had been withdrawn. They demurred to the complaint. The demurrer was overruled, plaintiffs' petition for writ of prohibition was denied by the superior court, and plaintiffs appeal. The sole question before us is whether the statute is, on its face, violative of constitutional rights of those charged.

Under the statute the chief administrative officer of a college, or one designated by him to maintain order on the campus, may notify a person of withdrawal of consent to remain on the campus ‘whenever there is reasonable cause to believe that such person has willfully disrupted the orderly operation of such campus * * *.’ (Subd. (a).) ‘Consent shall be reinstated * * * whenever [there is] reason to believe that the presence of the person from whom consent was withdrawn will not constitute a substantial and material threat to the orderly operation of the campus * * *.’ (Subd. (c).) After withdrawal of consent to remain, and if consent has not been reinstated, such person is guilty of a misdemeanor if he ‘willfully and knowingly enters or remains upon such campus' (Subd. (d)) during the 14-day period allowed for operation of the withdrawal of consent.

Appellants argue that the statute is unconstitutionally vague and uncertain in several respects. We cannot agree.

The statutory authorization for withdrawal of consent ‘whenever there is reasonable cause to believe’ that the required facts exist is not subject to such attack. A comparable statute (Pen.Code, § 602.7, repealed in 1969) which authorized the campus official to act similarly when ‘it reasonably appears' that the required cause exists, was held valid (People v. Agnello, 259 Cal.App.2d 785, 66 Cal.Rptr. 571). Agnello analogizes to the standard of the reasonable man having ‘reasonable cause to believe.’ It is obvious that the Legislature used the latter phrase in the current statute to convey the meaning imported by Agnello.

Appellants also argue that the phrase ‘willfully disrupted the orderly operation of such campus' is unconstitutionally vague and uncertain because it would permit exclusion of one who by ‘pure speech,’ short of incitement to violence, had upset or disturbed some who disagreed with his views. Such a construction is remotely possible and a statute so applied would violate constitutional reatrictions (see, e. g. Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131). But in a case presented solely upon the face of the statute we are required to construe the statute, when reasonably consonant with its language and the legislative intent, to avoid constitutional infirmity. (In re Kay, 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142, and see In re Cox, 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992.)

To interpret the statut as infringing upon First Amendment rights would be to demean the Legislature and to attribute to it the intent to reach a result it obviously sought to avoid. Hence we construe section 626.4 as negating ‘pure speech’ or other constitutionally protected right as a ground for withdrawal of consent to remain upon or return to a campus (see, e. g. In re Cox, supra; Cassidy v. Ceci, D.C., 320 F.Supp. 223).

We note that the statute specifically authorizes restoration of permission to visit the campus when that ‘will not constitute a substantial and material threat to the orderly operation of the campus'. (Subd. (c).) We but express what we deem to be the legislative intent when we further construe section 626.4 to permit exclusion from the campus only of one whose conduct or words are such as to constitute or incite to a substantial and material disruption of peaceful conduct of the academic institution and of those upon its campus.

Finally, appellants urge that the absence of notice and hearing before expulsion is a denial of due process (e. g., Dixon v. Alabama State Board of Education, 5 Cir., 294 F.2d 150; Dunkel v. Elkins, D.C., 325 F.Supp. 1235). Appellants' petition no-where alleges that they were or were not students. But in either situation no expulsion is here involved. Rather, the statutory limitation to a maximum of 14 days (Subd. (c)) amounts to a mere suspension.

“Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Rather, ‘what procedures due process may require * * * must begin with a determination of the government function involved as well as the private interest that has been affected by government action.’ (Cafeteria and Restaurant Workers Union, Local 473, AFL–CIO v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230.) In school discipline cases ‘the nature of the sanction affects the validity of the procedure used in imposing it’ (Farrell v. Joel, 2 Cir., 437 F.2d 160, 162).

When circumstances in the nature of an emergency reasonably indicate that it is impractical to hold a hearing before suspension, prior notice and hearing are not essential to due process (Dunkel v. Elkins, supra, 325 F.Supp. 1235, 1246), provided prompt hearing thereafter is afforded. Notice of the withdrawal of consent is required by the statute (Subd. (a)). Oral notice has been held to be sufficient (Charles S. v. Board of Education, 20 Cal.App.3d 83, 84, 97 Cal.Rptr. 422; Perlman v. Shasta Joint Jr. College Dist. Bd. of Trustees, 9 Cal.App.3d 873, 879, 88 Cal.Rptr. 563).

The element of urgency of prompt action and of impracticability of prior hearing is implied in the statutory requirement that a withdrawal of consent, if not made by the chief administrative officer, is void if not confirmed by that officer within 24 hours (Subd. (b)(2)). We construe the statute to permit withdrawal of consent without prior notice or some hearing only when some substantial element of urgency in prevention of injury to persons or property render it impracticable to afford prior notice and hearing.

The statute, on its face, requires prompt hearing after notice of withdrawal of consent. It requires early written confirmation by the chief administrative officer if he did not personally act in the first instance (Subd. (b)(2)). It also requires a hearing on the withdrawal within 7 days of request therefor by the person concerned (Subd. (c)). Thus, prompt hearing after the initial withdrawal, and before it can extend for the 14-day maximum, is provided.

In light of the specific statutory require ments we have pointed out, and of the construction we have placed upon the statute, we hold that it is immune to constitutional attack upon its face. Of course, we do not speculate as to what may be revealed when the full facts are shown at trial.

Judgment and order denying prohibition affirmed.

DRAPER, Presiding Justice.

HAROLD C. BROWN and CALDECOTT, JJ., concur.