GREENPEACE v. CITY OF GLENDALE (1992)

Appellants Glenn Smiley and Greenpeace, USA (Greenpeace) appeal from a judgment entered after the trial court granted summary judgment in favor of respondent city of Glendale.   We reverse.

FACTS

Greenpeace filed a complaint for declaratory and injunctive relief against enforcement of Glendale Municipal Code sections 7–215 and 7–220(f) which regulate charitable solicitations.   In pertinent part, section 7–220(f) requires that solicitors for charitable organizations submit to fingerprinting of their right index finger during the permitting process.¹  Section 7–215 exempts from the fingerprint requirement charitable organizations which have maintained headquarters in Glendale for three years.²

Greenpeace alleged the following causes of actions:  (1) violation of the right to equal protection as guaranteed in the Fifth and Fourteenth Amendments of the Constitution of the United States and article I, section 7, of the California Constitution;  (2) violation of the right of privacy as guaranteed by the First and Fourteenth Amendments of the Constitution of the United States and article I, section 1, of the California Constitution;  and (3) violation of the right to freedom of speech as guaranteed by the First and Fourteenth Amendments of the Constitution of the United States and article I, section 2, of the California Constitution.

Cross motions for summary judgment were filed in November and December of 1989.   On April 2, 1990, the trial court issued an order granting respondent's motion for summary judgment.   This appeal follows.

ISSUE

Appellants claim the judgment of the trial court must be reversed because the court failed to apply constitutional principles in determining that the fingerprint ordinance did not violate free speech, equal protection and right of privacy guarantees of the United States and California Constitutions.   We agree that under the facts presented, such an examination is warranted.

DISCUSSION

I. Freedom of SpeechA. Constitutional Provisions

In pertinent part, the First Amendment to the United States Constitution provides that “Congress shall make no law ․ abridging the freedom of speech, or of the press;  or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”   The relevant portion of article I, section 2 of the California Constitution provides that “[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.   A law may not restrain or abridge liberty of speech or press.”

 When the impairment of freedom of speech rights is involved, the appellate court must conduct an independent evaluation on a case-by-case basis, since what may be an impermissible restriction in one context may be permissible in another.  (Gonzales v. Superior Court (1986) 180 Cal.App.3d 1116, 1122, 226 Cal.Rptr. 164.)   Furthermore, where “state law affords greater protection to expression of free speech than federal law, state law prevails.”  (Ibid.)  By comparing the wording of the First Amendment to the parallel California provision, the California Supreme Court has recognized that the framers of our state Constitution intended its freedom of speech guarantees to be more definitive and inclusive than the First Amendment.   (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 908, 153 Cal.Rptr. 854, 592 P.2d 341.)   Therefore, since free speech rights under the California Constitution are more broadly construed than under the federal counterpart, California law will control as long as federal rights are protected.   Federal law in this arena is regarded as persuasive, but nonbinding.³  (Id. at p. 909, 153 Cal.Rptr. 854, 592 P.2d 341;  Gonzales v. Superior Court, supra, 180 Cal.App.3d at p. 1123, 226 Cal.Rptr. 164.)

B. Constitutional Implications of Glendale Municipal Code Sections 7–215 and 7–220(f)

 The California Supreme Court has recognized that the dissemination of written materials is protected under the First Amendment umbrella.  (Van Nuys Pub. Co. v. City of Thousand Oaks (1971) 5 Cal.3d 817, 823, 97 Cal.Rptr. 777, 489 P.2d 809 [house-to-house dissemination of written material protected by First Amendment];  Dulaney v. Municipal Court (1974) 11 Cal.3d 77, 83, 112 Cal.Rptr. 777, 520 P.2d 1, [posting of notices on utility poles entitled to First Amendment protection].)  In People v. Fogelson (1978) 21 Cal.3d 158, 145 Cal.Rptr. 542, 577 P.2d 677, the California Supreme Court cited forms of solicitation which have received First Amendment protection to include solicitation of religious contributions (Cantwell v. Connecticut (1940) 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213);  political contributions (Hynes v. Mayor of Oradell (1976) 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243);  union memberships (In re Porterfield (1946) 28 Cal.2d 91, 168 P.2d 706);  and sales of protected literature (Lovell v. Griffin (1938) 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949).  (People v. Fogelson, supra, 21 Cal.3d at p. 165, 145 Cal.Rptr. 542, 577 P.2d 677.)

The United States Supreme Court has clearly held that charitable solicitations involve speech interests ranging from communication of information to advocacy of causes, each of which implicate the right of freedom of speech as guaranteed by the First Amendment.  (Village of Schaumburg v. Citizens, etc. (1980) 444 U.S. 620, 632, 633, 100 S.Ct. 826, 833, 834, 63 L.Ed.2d 73;  Riley v. National Federation of the Blind of N.C. (1988) 487 U.S. 781, 108 S.Ct. 2667, 2673, 101 L.Ed.2d 669;  Alternatives for California Women, Inc. v. County of Contra Costa (1983) 145 Cal.App.3d 436, 449, 193 Cal.Rptr. 384;  People v. Knueppel (1980) 117 Cal.App.3d 958, 962, 173 Cal.Rptr. 466;  People v. American Youth Sports Foundation (1987) 194 Cal.App.3d Supp. 6, 12, 239 Cal.Rptr. 621.)

Greenpeace asserts that its door-to-door solicitors, in addition to performing traditional fundraising duties, also inform listeners of such environmental issues as ocean ecology, toxic waste dumping, preservation of the environment, protection of whales and seals, and hazards relating to the use of nuclear power.   Canvassers also distribute fact sheets, brochures and flyers.   They encourage citizens to write letters to members of Congress, to attend hearings, and to become involved in environmental and peace issues local to their community.   Thus, Greenpeace urges, and we agree, that the Glendale ordinance impacts on important First Amendment rights.

We also agree that the trial court, having made the determination that fingerprinting was a legitimate exercise of the state's function of protecting its citizenry from fraud which did not invade any constitutional right, failed to apply the appropriate tests where First Amendment and Equal Protection rights are at issue.

C. Strict Scrutiny

Generally, the state may reasonably and narrowly impose restrictions on solicitations in order to prevent fraud.  (People v. Fogelson, supra, 21 Cal.3d 158, 165, 145 Cal.Rptr. 542, 577 P.2d 677.)   However, any ordinance which has the power to affect First Amendment rights requires a higher standard of review and must survive exacting scrutiny.  (Id. at p. 166, 145 Cal.Rptr. 542, 577 P.2d 677;  Riley v. National Federation of the Blind of N.C., supra, 108 S.Ct. at p. 2680;  People v. Glaze (1980) 27 Cal.3d 841, 845, 166 Cal.Rptr. 859, 614 P.2d 291;  City of Indio v. Arroyo (1983) 143 Cal.App.3d 151, 157, 191 Cal.Rptr. 565.)   That is, the regulation must be narrowly drawn to promote compelling and substantial government interests (City of Indio, supra, at p. 157, 191 Cal.Rptr. 565), and when a statute is alleged to infringe upon First Amendment rights, the state or municipality bears the burden of demonstrating its constitutionality.  (People v. Glaze, supra, 27 Cal.3d at p. 846, 166 Cal.Rptr. 859, 614 P.2d 291.)

Although the California Supreme Court has not yet ruled on a fingerprint ordinance in a First Amendment context, it has recognized that municipalities have the right to demand identification or information from solicitors in order to prevent fraud.  (Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232, 246, 163 P.2d 704.)   Similarly, while the United States Supreme Court has stated that some identification can be required from solicitors as a prerequisite to granting a permit (Martin v. Struthers (1943) 319 U.S. 141, 148, 63 S.Ct. 862, 865, 87 L.Ed. 1313), it has never squarely dealt with a fingerprint requirement.

We therefore find it instructive to look to two federal appeals court decisions which have recently addressed similar fingerprint requirements in municipal ordinances.   In New Jersey Citizen Action v. Edison Township (3d Cir.1986) 797 F.2d 1250, three political action groups challenged New Jersey ordinances adopted by several municipalities that required, among other things, that prospective solicitors be fingerprinted.⁴  The district court's ruling, which upheld the ordinances against a reasonable relationship test, was reversed and remanded by the court of appeals.   Noting first that the canvassers did not object to other licensing requirements, the appellate court proceeded to analyze the fingerprint clause under First Amendment principles, stating that “the municipalities must not only show that there is an important state interest, but that there is a substantial relationship between that interest and the regulation.”  (Id. at p. 1265.)   Citing evidence that canvassers refused to submit to fingerprinting because of the air of criminality associated with it, that it would create difficulties for political action groups in recruiting solicitors, and that the concerned groups were unable to canvass in certain municipalities because the solicitors refused to be fingerprinted, the court concluded that the fingerprint requirement substantially burdened the group's First Amendment rights to solicit and canvass.  (Ibid.)

Although the court gave credence to the municipalities' interest in deterring, preventing, investigating or prosecuting crime, it concluded that there was no showing that canvassers and solicitors had a significant history of criminal behavior;  and, hence, there was no substantial relationship between the state interest and the fingerprint requirement.  (Ibid.)

In National People's Action v. Village of Wilmette (7th Cir.1990) 914 F.2d 1008, the court of appeals affirmed the district court's granting of a preliminary injunction enjoining an ordinance from requiring fingerprinting of prospective solicitors.   In doing so, it applied the standard that restrictions on First Amendment freedoms must be narrowly drawn to serve a significant government interest and must leave open ample alternative means of communication.  (Id. at p. 1012.)   There, police officials testified that fingerprints of prospective solicitors were taken in the lobby of the police station, but that these prints, because they were taken on registration cards, could not be used for classification purposes.   An official also testified that although the fingerprints could be used to confirm that a solicitor had committed a crime, the fingerprints had never been used in that manner.   Finally, the record showed that solicitors for the National People's Action chose not to solicit in Wilmette because the fingerprinting process was associated with having committed a crime.

The court of appeals cited the district court's findings that (1) the fingerprints, as taken, could not be used to check for criminal records, nor did the village try to do so;  (2) that the use of the fingerprints for later criminal investigations was problematic, nor ever attempted;  and (3) the fingerprinting procedure affirmatively discouraged protected activity.   Finally, the court of appeals noted that other means were available in checking criminal records and adopted the district court's conclusion that the true purpose and effect of the fingerprinting procedure was to discourage solicitors.  (Id. at p. 1013.)

In the case before us, the ostensible purpose of the Glendale fingerprint ordinance is to protect the general public and the recipient of the solicitation from dishonest solicitors.   Glendale asserts that over the years, complaints have increased regarding possible fraudulent or deceptive door-to-door and telephone solicitations.   We agree that the city has a compelling interest in protecting its citizenry against fraud.  (Alternatives for California Women, Inc. v. County of Contra Costa, supra, 145 Cal.App.3d 436, 449, 193 Cal.Rptr. 384.)   We also respectfully acknowledge the dissenting opinion in New Jersey Citizen Action v. Edison Tp., supra, 797 F.2d 1250, which expressed that fingerprinting is now a routine procedure in obtaining business licenses and entering the armed services;  that neither a personal objection to producing a driver's license or photograph or a personal distaste for fingerprinting should be honored;  and that fingerprinting could remove suspicion from a canvasser at a preliminary stage.

We are concerned, however, that the fingerprint ordinance is not “narrowly drawn in order to promote a compelling state interest.”   Rather, it has the constitutionally impermissible effect of chilling freedom of speech while failing in its purpose of deterring fraud.

According to deposition testimony by a Glendale city clerk who had extensive experience in processing permit applications for charities, the following sequence of events normally took place:  at the time of application, the solicitor's fingerprint and photograph were taken;  upon approval of the application by the police department, the application was sent to the city manager's office for final approval;  a permit was then issued to successful applicants, along with cards containing photo identification and a fingerprint impression;  and, finally, the master copy was stored in a drawer, to which the public could obtain access.   The city clerk stated that she had never received a request from the police department for information from the file after a permit had been issued.

Evidence in the form of a declaration by the Glendale Chief of Police revealed that the fingerprint obtained was only to be used to check on any criminal background and verify the identity of a solicitor should a crime occur.   Deposition testimony by the chief showed that at the time the application was made, the fingerprint was not verified by the police department.   The chief also stated that a full fingerprint set would be more effective for identification purposes than a single print.   Although he opined that fraud by door-to-door solicitors was becoming a major problem in Glendale in recent years, he could not recall any situation where a person who filled out an application and was issued a permit was subsequently investigated by the police for criminal activities.   Moreover, he admitted that “con artists” would often rely on forged documents and, therefore, would not need to apply for the permit.   He also stated that the fingerprint requirement would not deter “con artists” from going through the application process in order to practice their deceptions.

As in New Jersey Citizen Action v. Edison Tp., supra, 797 F.2d 1250, here there is no showing of a relationship between the regulation and the deterrence of fraud by Glendale.   That is, Glendale has not shown that solicitors have a propensity to commit crimes, other than making a general statement to the effect that Glendale has experienced an increase in complaints regarding possible fraudulent solicitations.   Nor has it shown a practical application of the fingerprinting process.   We find most telling the statement by the Glendale Chief of Police that the fingerprint requirement would not act as a deterrent to criminal activity.   We conclude, therefore, that the ordinance is not narrowly tailored to meet its purpose.

On the other hand, declarations show that the fingerprint requirement does result in a chilling effect.   Even though Glendale asserts that no applicant has ever refused to be fingerprinted during the past 15 years, the record shows that potential Greenpeace solicitors will not work in Glendale because they refuse to submit to fingerprinting.   These solicitors claim that the air of criminality associated with fingerprinting, the fear that unauthorized personnel and state agencies will gain access to the fingerprints, and the degrading experience of being fingerprinted, dissuades them.   Greenpeace also cites fear of future political surveillance as a deterrent.

D. Less Restrictive Means

When fundamental liberties are at stake, the test is whether less restrictive means are available to accomplish the government's purpose.  (People v. Glaze, supra, 27 Cal.3d 841, 847, 166 Cal.Rptr. 859, 614 P.2d 291.)   We do not believe that a person with fraudulent intent will be deterred from carrying out his actions by a fingerprint requirement.   In light of evidence submitted by Glendale that such persons quickly appear in a city, perpetrate their fraud, and then disappear overnight without a trace, we doubt that such a person would stop to obtain a permit.

We determine that Glendale's interest in preventing fraud can be accomplished by less restrictive means than those which entail diminution of freedom of speech rights.  (People v. American Youth Sports Foundation, supra, 194 Cal.App.3d Supp. 6, 14, 239 Cal.Rptr. 621.)   Such means include enforcing existing laws against trespass, breach of the peace, fraud, and any other substantive offenses which might be committed.  (Alternatives for California Women, Inc. v. County of Contra Costa, supra, 145 Cal.App.3d 436, 449, 193 Cal.Rptr. 384.)

Under the Glendale ordinance, solicitors are required to give detailed information, including the name, address, or headquarters of the person applying for the permit;  names and addresses of the officers, managers, and a copy of the resolution authorizing the solicitation;  purpose of the solicitation;  total amount of the funds to be raised, and the use of such funds;  the need for the contributions;  the name and address of the person disbursing solicitation receipts;  the names, addresses, signatures and photographs of the solicitors;  the time and methods of solicitations;  the costs and fees of the solicitation;  a financial statement;  and a statement of the character and extent of the charitable work performed within Glendale.   A personal affidavit attached to the application requires information regarding any arrests or convictions of any kind within the past 10 years.

Glendale is therefore presented with a wealth of data regarding each solicitor.   The obtaining of a fingerprint, which has never been used in any investigation, simply results in collecting superfluous information which has the effect of intimidating legitimate solicitation involving First Amendment rights while failing in its purpose of deterring fraud.

II. Equal Protection

A. Constitutional Provisions

 The Fourteenth Amendment of the United States Constitution provides, in pertinent part, that “․ [n]o state shall ․ deprive any person of life, liberty, or property, without due process of law;  nor deny to any person within its jurisdiction the equal protection of the laws.”  Article I, section 7, subdivision (a) of the California Constitution provides, in pertinent part, that “[a] person may not be deprived of life, liberty or property without due process of law or denied equal protection of the laws.”   While the California Constitution does not contain an explicit “state action” requirement, both the United States Constitution and the California Constitution “ ‘compel[ ] recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ ”  (Darces v. Woods (1984) 35 Cal.3d 871, 885, 201 Cal.Rptr. 807, 679 P.2d 458.)

The California Supreme Court has declared the equal protection clause of the California Constitution maintains its independent vitality, and therefore, federal decisions are persuasive, but not binding.  (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 469, 156 Cal.Rptr. 14, 595 P.2d 592;  Darces v. Woods, supra, 35 Cal.3d, at pp. 892–893, 201 Cal.Rptr. 807, 679 P.2d 458.)

B. Strict Scrutiny

Classifications which are created by statute must bear, at a minimum, a rational relationship to a legitimate government purpose.  (Darces v. Woods, supra, at p. 885, 201 Cal.Rptr. 807, 679 P.2d 458.)   Where suspect classifications or fundamental interests are involved, the state must show that it has a compelling interest which justifies the law and that the classifications are necessary to further its purpose.  (Ibid.)  Since the Glendale ordinance impinges upon the exercise of First Amendment rights, Glendale must show that the classification is necessary to serve a compelling governmental interest and that there are no reasonable, less intrusive means to accomplish its goals.  (Plyler v. Doe (1982) 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786;  Choudhry v. Free (1976) 17 Cal.3d 660, 664, 131 Cal.Rptr. 654, 552 P.2d 438.)

C. Compelling State Interest

The Glendale ordinance exempts from its fingerprinting requirement those organizations which have been headquartered in its city for three years.   The California Supreme Court has addressed durational residence requirements in a number of contexts.  (See, e.g., Johnson v. Hamilton (1975) 15 Cal.3d 461, 472, 125 Cal.Rptr. 129, 541 P.2d 881 [durational residence requirement in excess of 30 days for candidates for local office violative of the equal protection clause];  Thompson v. Mellon (1973) 9 Cal.3d 96, 101, 102, 106, 107 Cal.Rptr. 20, 507 P.2d 628 [durational residence requirements imposed as a precondition to candidacy for public office violative of equal protection clause];  Young v. Gnoss (1972) 7 Cal.3d 18, 26, 101 Cal.Rptr. 533, 496 P.2d 445 [54–day residence requirement to vote violative of the fundamental right to vote].)

So, too, has the United States Supreme Court.  (See, e.g., Attorney General of New York v. Eduardo Soto–Lopez (1986) 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 [strict scrutiny review applied to civil service employment preference awarded to resident veterans who lived in New York at time of entering armed forces;  statute violated right to migrate and equal protection of the law];  Hooper v. Bernalillo County Assessor (1985) 472 U.S. 612, 105 S.Ct. 2862, 86 L.Ed.2d 487 [tax exemption granted to veterans who resided in New Mexico before May 8, 1976 struck down as having no rational basis];  Zobel v. Williams (1982) 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 [no rational basis in statute granting residents one mineral income dividend unit for each year of residence subsequent to 1959];  Memorial Hospital v. Maricopa County (1974) 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 [one-year county residence requirement for the receipt of indigent medical care repugnant to equal protection clause under strict scrutiny analysis];  Dunn v. Blumstein (1972) 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 [one-year state and 90–day county residence requirement for voters violated equal protection clause under strict scrutiny analysis];  Shapiro v. Thompson (1969) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 [one-year residence requirement for receiving welfare benefits impinged on right to travel, violated equal protection clause under strict scrutiny analysis].)

Neither the California nor United States Supreme Courts have yet addressed a durational residence requirement for solicitors.   We look, therefore, to New York Public Interest v. Village of Roslyn Estates (1979) 498 F.Supp. 922, where the district court determined that a six-month residence requirement for solicitors discriminated against nonresidents and deprived them of a fundamental right in violation of the equal protection clause.  (Id. at p. 930;  see also, Troyer v. Town of Babylon (E.D.N.Y.1980) 483 F.Supp. 1135 [solicitation ordinance exempting six-month residents violated equal protection clause].)

While we note that at least two other federal courts have rejected the equal protection argument in fingerprint ordinances, those cases involved fingerprinting of taxi cab drivers and employees of stock exchange companies.   (Walton v. City of Atlanta (5th Cir.1950) 181 F.2d 693, 694;  Thom v. New York Stock Exchange (S.D.N.Y.1969) 306 F.Supp. 1002, 1011, 1012.)   Thus, fundamental rights were not implicated.   Similarly, the case relied upon by the trial court below, Gray v. Whitmore (1971) 17 Cal.App.3d 1, 94 Cal.Rptr. 904, involved a regulation affecting the property rights of landlords and tenants, rather than speech protected by the First Amendment.

Again, we do not disagree that prevention of fraud is a compelling state interest.   However, we are concerned that the three-year requirement is not precisely tailored nor necessary to further the anti-fraud interest.   Glendale asserts that fraudulent scams are not likely to be perpetrated by organizations headquartered in Glendale for a period of time;  it therefore urges that an exemption for charitable organizations headquartered for three years is reasonable.   While we understand Glendale's rationale, the arbitrary selection of a three-year requirement, as well as the burden imposed on national or foreign based organizations, is troublesome.   If the 60 or 70 cities in Los Angeles County were to enact similar ordinances with headquartering requirements, the result would be an incredible hardship on national organizations.   Furthermore, Glendale has not shown that the regulation of foreign organizations is necessary to further its anti-fraud measures.   Rather, the ordinance reveals Glendale's propensity to forward the interests of local civic organizations.   Moreover, this ordinance does not guarantee that organizations with headquarters in Glendale may not inadvertently hire solicitors who will engage in fraudulent activity.

We believe that the ordinance has not been narrowly tailored, nor is it necessary to promote Glendale's interest in deterring fraud.

III. Other Issues

Greenpeace urges the invalidation of the Glendale ordinance on several other grounds, namely, that the ordinance is an invasion of privacy, that it is not content neutral, that it lacks procedural safeguards and is vague.   Having handed Greenpeace a victory on its essential arguments, we decline to discuss the remainder of its assertions.

DISPOSITION

We hold that the trial court erred by not granting appellants' application for summary judgment to the extent of declaring unconstitutional section 7–215 in its entirety and the fingerprint requirement of section 7–220(f).

The judgment is reversed.   The matter is remanded for proceedings consistent with this opinion.   Each side shall bear their respective costs on appeal.

FOOTNOTES

1.   Specifically, section 7–220(f) states that:  “Any person desiring a permit and registration card shall file a verified application with the city clerk containing the following:  ․ (f) The names and addresses, signatures, photographs and right index fingerprints of the persons to be directly engaged in the proposed solicitation, and the names of all promoters connected, or to be connected, with the proposed solicitation.”

2.   Section 7–215 states that:  “The provisions of this division shall not apply to any solicitation by the members of any charitable organization which has been in existence in, and which has regularly maintained headquarters in the city for a period of at least three years next preceding the date on which such solicitation shall begin.”

3.   For the purpose of convenience, we will refer to freedom of speech rights under the California Constitution and the rights guaranteed under the First Amendment collectively as First Amendment rights.

4.   Only one of the ordinances gave the police department discretion to require fingerprinting if it determined that they were necessary for identification.   Otherwise, the fingerprinting was mandatory.

NOTT, Associate Justice.

FUKUTO, Acting P.J., and HART, J.,* concur.