HomeMy WebLinkAboutAGENDA REPORT 1995 0705 CC SPC ITEM 03ACity of Berkele��ti� —�-
Office of the Cit- \ttorney
Martin Luther Kind h
Civic Center Building
2180 Milvia Street
Berkeley, California 94704
Telephone: 1510 1 044 -63 80
Telecopy: 51(), 644 -8641
DATE: June 12, 1995
,ON:
TO: All City Attorneys and County Counsels
FROM: Manuela Albuquerque, City Attorney City 4V Berkeley*
""
JUN 15
199 . ® l„ Of MOMPWK
RE: BERKELEY COMMUNITY HEALTH PROJECT, et al. v. CITY OF
BERKELEY, et al.
U. S. District Court Case No. ('95 00665 CN
I am writing to ask you to join an amicus brief to be prepared by John Barisone, the City
Attorney of Santa Cruz, which will be filed in the Ninth Circuit on behalf of the City of
Berkeley in the above - entitled case. Please fill out the attached authorization and related
information by July 2, 1995, since the brief is likely to be due by July 14, 1995.
In this case, a federal district court for the Northern District of California held that a Berkeley
ordinance regulating the time, place and manner of solicitation in public places was an
improper content -based regulation of speech under the California constitution, because it
regulated solicitation and not all speech. However, the Berkeley ordinance regulated all
forms of solicitation, irrespective of content or viewpoint. The court's preliminary injunction
on another Berkeley ordinance regulating sitting and lying on sidewalks is not being appealed
at this time because the Ninth Circuit is about to issue a ruling on a related Seattle ordinance.
Thus, this appeal for amicus assistance only invoh,,�s an appeal of the ruling on the
solicitation ordinance.
The Executive Committee of the Legal Advocacy Committee has approved the filing of
an amicus brief in this case and has urged all cities to join, the highest priority
recommendation under the committee's procedures. The District Court's ruling, if upheld,
would render invalid numerous commonplace city ordinances. These include ordinances
which regulate door -to -door solicitation, solicitation from vehicles, solicitation in public
places and possibly regulation of peddlers and solicitors
In Blair v. Shanahan 775 F.Supp. 1315 (N.D. Cal. 1991) the court held that Penal Code
section 647 c, the California pan handling statute, was an improper content -based regulation
of protected speech under the United States Constitution, because it singled out pan handling.
The California courts had ruled to the contrary. In response to Blair and a related Second
Circuit case involving a. New York pan handling statute a City Attorney's department paper
OTelecommunications L)evice for the Deat (510) 644 -6915
All City Attorneys
Re: BERKELEY COMMUNITY, et al. v. CITY OF BERKELEY, et al.
Page 2
counseled cities not to enforce the Penal Code and to instead adopt ordinances which
regulated the time, place and manner of all solicitation in public places.
This advice was consistent with rulings from both the United States Supreme Court and the
Ninth Circuit. These courts have held that solicitation for the immediate payment of goods or
money is inherently intrusive and intimidating and thus, regulation of such solicitation is
content - neutral under the United States Constitution. This body of law is described in the
enclosed City of Berkeley brief in the District Co�xrt
Now, in the Berkeley case and in an earlier case involving a Riverside ordinance, two district
courts have held that regulation of solicitation is content -based and thus, illegal under the
California Constitution. I have enclosed a copy of the District Court's decision in the
Berkeley case. As you will notice, it concludes that the California Constitution has different
and broader protections with respect to solicitation?
However, as the enclosed Berkeley brief points out., no California case has held that the
California constitution provides broader protection for solicitation than that provided under the
United States Constitution. A 1976 Court of Appeal case, Alternatives for California Women
v. County of Contra Costa 145 Ca1.App. 3d 436 (1976) relied solely on federal law in holding
that regulation of door -to -door solicitation was content - based. The Berkeley brief also
explains that the United States Supreme Court and the Ninth Circuit have now made it clear
that regulation of solicitation is content - neutral, thus effectively overruling the Alternatives
case.(United States v. Kokinda, 497 U.S. 720, 737-738 (1990); _ACORN V. City of Phoenix,
798 F.2d 1260. 1267 (9th Cir. 1986) Moreover, since Alternatives was decided, the
California Supreme Court has explicitly stated that cities have the power to regulate the time,
place and manner of solicitation in public places. People v. Fogelson, 21 Ca1.3d 158, 161
(l 978)
The appeal is by no means a clear winner, however, because of a footnote in an earlier Ninth
Circuit which speculated that the California Court of Appeal in Alternatives was actually
relying on broad protections in the California Constitution, even though the California Court
of Appeal never said so. Carreras v. City of Anaheim, 768 F. 2d 1039 n. 21 (9th Cir. 1985)
The support of cities and counties is therefore critical to showing the Ninth Circuit that no
city has read the California Constitution or the Alternatives case so broadly.
Thank you for your consideration of this memorandum. I look forward to your city or
county's support.
cc: JoAnne Speers, General Counsel