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

Ann Kessinger PARR, Plaintiff and Appellant, v. MUNICIPAL COURT OF the MONTEREY-CARMEL JUDICIAL DISTRICT, MONTEREY COUNTY, Defendant and Respondent; PEOPLE of the State of Callfornia, Real Party in interest and Respondent.

Civ. 26594.

Decided: March 23, 1970

Paul N. Halvonik, American Civil Liberties Union of Northern Cal., San Francisco, Francis Heisler, Herbert A. Schwartz, Richard M. Silver, Carmel, for appellants. William B. Burleigh, City Atty. of City of Carmel, Carmel, for respondent and real party in interest.

Appellant was charged in municipal court with violation of a city ordinance prohibiting sitting upon the grass of a public park. When her demurrer to the complaint was overruled, she petitioned in superior court for a writ of prohibition. The writ was denied after hearing. She appeals.

The portion of the ordinance here relevant is: ‘On any public property, it shall be unlawful for any person to * * * lie or sit on any lawns.’ Appellant sat on the lawn while attending a meeting in the park at which protests against the adoption of this ordinance were being advanced by a number of speakers.

Appellant argues that the ordinance necessarily denies equal protection of the law. Part of the argument is that, on its face, the ordinance applies to all lawns, public or private, but obviously is not intended to be applied to privately owned lawns. This argument, of course, is based upon a selectively myopic reading of the ordinance. In fact, the ordinance applies only to ‘public property’.

She also argues that equal protection is denied because the ordinance in fact is to be applied only against a limited class—non-resident ‘hippies'. This argument turns in part upon the declaration of urgency accompanying the ordinance, which will be discussed later. Save for inferences from that declaration, there is no evidence to support this view. At oral argument, appellant's counsel readily conceded that his client is a resident and a merchant in Carmel, and not a ‘hippie’ by any definition. Thus this prosecution itself negates the claim of enforcement against a limited group only.

On its face, the ordinance applies equally to all who commit the prohibited acts. The acquisition and maintenance of public parks is a long recognized municipal function (10 McQuillin on Municipal Corporations, § 28.54). The city council has determined these measures for park protection to be for the protection of the public health, safety and welfare. Determination of the wisdom and reasonableness of an exercise of the police power is for the legislative body, and will not be disturbed by the courts if the issue is debatable (Lockard v. City of Los Angeles, 33 Cal.2d 453, 461, 202 P.2d 38). The courts accord good faith to the city in the absence of a clear showing to the contrary (Hadacheck v. Sebastian, 239 U.S. 394, 414, 36 S.Ct. 143, 60 L.Ed. 348). Here there is no showing of arbitrary or discriminatory design in enforcement.

The contention that the ordinance is vague and uncertain borders on the frivolous. It is difficult to see how the act of lying or sitting on a park lawn can be more specifically stated. The same is true of other prohibitions in the ordinance. There simply is no uncertainty in the language.

Appellant argues that the ordinance is unconstitutional because it invades the First Amendment rights of free speech and peaceable assembly. We recognize that a regulation of First Amendment rights must be ‘supported by a valid municipal interest that cannot be protected by different or more narrow means' (In re Hoffman, 67 Cal.2d 845, 849, 64 Cal.Rptr. 97, 99, 434 P.2d 353, 355, and cases there cited). This case, however, is readily distinguishable from Hoffman. The ordinance before us does not prohibit mere presence (Hoffman, p. 848, 64 Cal.Rptr. 97, 434 P.2d 353). Standing or walking in a park, whether as demonstrator or otherwise, is not barred. It is only particular uses or activities, e.g., sitting or lying on the grass, which are proscribed. Unlike Hoffman, there is no assertion that the ordinance was enforced in such a way as to restrict either speech or assembly. Rather, the only arrest alleged is that of defendant. No speaker is claimed to have been arrested. There is no suggestion that the arrest of defendant was either designed to or did break up the protest meeting. On the record here no curbing of First Amendment rights is shown. None appears on the face of the ordinance.

We find no merit in appellant's contention that this is a trespass ordinance, and that the field of trespass upon public parks has been preempted by state legislation. As pointed out earlier, the ordinance seeks to regulate activity and not mere presence. Moreover, the only state legislation in this field (Pen.Code, § 647c) specifically reserves to the cities the power ‘to regulate conduct upon a street, sidewalk, or other public place.’

Finally, appellant challenges the validity of the declaration of urgency accompanying this ordinance. The charged violation occurred less than 30 days after adoption of the ordinance. Hence the ordinance was effective at the arrest date only if the declaration of urgency, which would make it effective upon adoption, were valid (Gov.Code, § 36937). There is no question that the required four-fifths vote was had. The attack is upon the content of the declaration. It reads: ‘* * * the City Council * * * have observed an extraordinary influx of undesirable and unsanitary visitors to the City, sometimes known as ‘hippies', and finds that unless proper regulations are adopted immediately, the use and enjoyment of public property will be jeopardized, if not entirely eliminated; the public parks and beaches are, in many cases, rendered unfit for normal public use by the unregulated and uncontrolled conduct of the new transients.’

The declaration of the council is prima facie evidence of the existence of an emergency (Potter v. City of Compton, 15 Cal.App.2d 232, 237, 59 P.2d 537) and places the burden upon the one attacking it (Los Angeles Dredging Co. v. Long Beach, 210 Cal. 348, 358, 291 P. 839), but there must be a statement of the facts establishing urgency (Gov.Code, § 36937; Morgan v. City of Long Beach, 57 Cal.App. 134, 138, 207 P. 53).

Appellant contends that only conclusions, and no facts, are contained in the declaration here. But the declaration does state that there has been an extraordinary influx of people to the city; that unless regulations are adopted at once, the enjoyment of public property will be jeopardized if not entirely eliminated; and that the public parks and beaches are being rendered unfit for public use by this influx. These are facts, and if true as the council found them to be, they show a sudden increase in use of public parks which required regulation to avoid destruction of these facilities.

But appellant argues that the discriminatory statements of the declarations void it. As we have pointed out, the ordinance itself contains no suggestion of arbitrary or discriminatory intent, and the circumstances of the present case strongly negate discriminatory application of the ordinance even though review of ordinance and facts is made with the fullest coloration which can be attributed to the discriminatory statements in the declaration of urgency.

The declaration's reference to ‘undesirable and unsanitary visitors * * * sometimes known as ‘hippies” is unfortunate. Although no authority is cited, we may assume, without deciding, that if the true motive for the urgency clause was discriminatory, it would defeat the clause. But the declaration in fact recites an influx of persons to the city and a resultant overuse of parks. The conclusionary description of these people, in light of the ordinance itself and the facts of its application, may be disregarded as immaterial. Whether the newcomers were hirsute and unsanitary transients, or bald doctors who scrubbed with antiseptic soap often and who intended permanent residence, the essential fact still was the increased use of the parks. We cannot assume bad faith on the part of the city council (Hadacheck v. Sebastian, supra, 239 U.S. 394, 414, 36 S.Ct. 143). Under these circumstances, it would be an unauthorized extension of the iudicial power to strike down the urgency clause.

We find no threat to First Amendment rights or to other constitutional guaranties in this regulation of the posture of appellant in the public parks of Carmel.

Judgment affirmed.

DRAPER, Presiding Justice.