Opinion
For Opinion on Hearing, see 65 Cal.Rptr. 273, 436 P.2d 273.
Albert M. Bendich, Berkeley, amicus curiae for petitioners.
Coleman A. Blease and Lawrence K. Karlton, Sacramento, for petitioners.
John B. Heinrich, County Counsel, L. B. Elam, Deputy County Counsel, Sacramento, John M. Price, Dist. Atty., Robert Puglia, Deputy Dist. Atty., for respondent.
PER CURIAM.
The four petitioners were arrested and charged with criminal contempt of a court order, punishable as a misdemeanor under Penal Code section 166, subdivision 4. They seek habeas corpus. The writ is appropriate where the criminal court is acting in excess of its jurisdiction as defined by constitutional provisions or statutes. (In re Petersen (1958) 51 Cal.2d 177, 181, 331 P.2d 24, 77 A.L.R.2d 1291.) The circumstances surrounding petitioners' arrest and prosecution and the constitutional and jurisdictional issues posed by the invocation of criminal process to halt peaceful picketing have impelled this court to consider relief by habeas corpus. The writ will issue, since the criminal contempt statute is unconstitutionally applied here.
Penal Code section 166 declares: 'Every person guilty of any contempt of Court, of either of the following kinds, is guilty of a misdemeanor:
Threatened by a strike by the Social Workers Union and by county employees affiliated with the union, the County of Sacramento sought injunctive relief. Designated as defendants were the local chapter of the Social Workers Union, various named officers and executive board members, together with 750 individual 'Does' and 150 'John Doe Associations.' The action was filed February 2, 1967. Presented with the verified complaint, the superior court issued an ex parte temporary restraining order addressed to all defendants and to 'all persons in active concert or participation with them or in concert among themselves.' It enjoined them from inducing or attempting to induce any county employee to cease work; from intimidating or molesting county employees and invitees; from engaging in or inducing or calling a strike, work stoppage, 'or other concerted activity;' from 'picketing, and from placing, stationing or maintaining or causing any picket or pickets to be stationed or maintained, and from causing, participating in or inducing others to participate in any demonstration or demonstrations on any grounds, or that portion of any private or public street which adjoins any grounds, or on any sidewalk which is contiguous to any portion of any private or public street which adjoins any grounds which are owned, possessed or controlled by the Plaintiff and on which are situated any building, buildings or structures of any kind whatsoever which are occupied by Plaintiff and in which employees of Plaintiff are assigned to work.' The temporary restraining order included an order directing the defendants to show cause on February 16 why a preliminary injunction should not be issued.
On February 7 approximately 40 per cent of the social workers employed in the County Department of Social Welfare failed to appear for work and 30 to 40 pickets appeared before the departmental offices at 43d and X Streets in the City of Sacramento. Later in the day the number of pickets increased to approximately 70. About half the pickets carried signs indicative of a strike against the county or bearing the designation of the Social Workers Union. Members of the Sacramento city police department served pickets with copies of the summons, complaint and temporary restraining order and repeatedly ordered them to disperse over a 'bullhorn.' During the morning hours 22 pickets were arrested upon The four petitioners are not county employees nor are they members of the Social Workers Union. Petitioner Berry states that he is a student at Sacramento State College. Late in the afternoon of February 9 Berry appeared with four other persons and walked back and forth on the sidewalk fronting the main entrance to the County Administration Building at 7th and I Streets, several miles distant from the office of the Department of Social Welfare at 43d and X Streets. Berry was carrying a sign which read 'Citizens Support Social Workers Strike.' About 30 minutes after the pickets appeared, 15 police officers arrived. All five pickets were personally served with copies of the summons, complaint and temporary restraining order and informed that they were served as specifically numbered 'Doe' defendants. By means of a bullhorn the pickets were informed that they were violating the court order. The pickets, including Berry, then walked across the street and put their signs in their cars. A short time later Berry returned to the sidewalk and walked back and forth before the County Administration Building carrying his sign. He was then arrested on a charge of violating Penal Code section 166, subdivision 4.
Petitioners Hall, Robinson and Crown state that they are private citizens, not affiliated with the Social Workers Union. They appeared before the County Administration Building about noon on February 10 together with 17 other pickets. Separated by intervals of three to four feet, they paraded on the sidewalk in front of the County Administration Building. Hall, Robinson and Crown carried placards consisting of a blank rectangle of light cardboard. The other pickets carried signs indicative of the Social Workers Union or bearing the legend 'On Strike Against Sacramento County.' The police served the pickets with copies of the papers, stating that each was served as a specifically numbered 'Doe' defendant. After disregarding a bullhorn order to disperse, the pickets, including Hall, Robinson and Crown, were arrested on a charge of violating the Penal Code section. A few days later criminal complaints were filed against the four petitioners, who are presently on bail. Habeas corpus is appropriate even though bail has been allowed. (In re Petersen, supra, 51 Cal.2d at pp. 181-182, 331 P.2d 24.)
There is no claim here of mass or forcible picketing, invasions of property or physical obstructions to the use of public facilities. (Cf. People v. Poe (1965) 236 Cal.App.2d Supp. 928, 47 Cal.Rptr. 670.) Petitioners' sympathetic picketing was concededly peaceful. It took place on the public sidewalk outside the County Administration Building. Peaceful picketing involves an exercise of the constitutional rights of free speech and assembly; subject to certain limitations, it is protected against injunctive interference by the First and Fourteenth Amendments. (Thornhill v. State of Alabama (1940) 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Carlson v. People of State of California (1940) 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; Schwartz-Torrance Inv. Corp. v. Bakery & Confectionery Workers' Union (1964) 61 Cal.2d 766, 769-770, 40 Cal.Rptr. 233, 394 P.2d 921.) Picketing has elements other than the communication of ideas, since the presence of a picket line may induce action regardless of the ideas being disseminated. (International Brotherhood of Teamsters, etc. v. Vogt, Inc. (1957) 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347.) Because of its mixed speech and nonspeech elements, picketing, although peaceful, may be restrained if its purpose offends some valid objective of state law or public policy. (Hughes v. Superior Court (1950) 339 U.S. 460, 465-467, 70 S.Ct. 718, 94 L.Ed. 985; Hughes v. Superior Court (1948) 32 Cal.2d 850, 854, 198 P.2d 885.) The California Supreme Court has summarized the matter thus: 'Although Schwartz-Torrance Inv. Corp. v. Bakery & Confectionery Workers' Union,
Unless permitted by statute, public employees have no right to strike against the government. (Los Angeles Met. Transit Authority v. Brotherhood of R. R. Trainmen (1960) 54 Cal.2d 684, 687, 8 Cal.Rptr. 1, 355 P.2d 905; Pranger v. Break (1960) 186 Cal.App.2d 551, 556, 9 Cal.Rptr. 293; Note, 31 A.L.R.2d 1142, 1159-1161.) No statutory permission exists here. Injunctive restraint against strikes of public employees and picketing of struck public works projects has been sustained. (City of Los Angeles v. Los Angeles, Building, etc., Council (1952) 109 Cal.App.2d 81, 240 P.2d 16 (hg. den.); City to Los Angeles v. Los Angeles Building, etc., Council (1949) 94 Cal.App.2d 36, 47, 210 P.2d 305.)
In view of the apparent illegality of the social workers' strike against Sacramento County, it may be assumed for present purposes that an injunction would be valid when aimed at picketing for the purpose of promoting or enforcing the work stoppage. Counsel have seriously and ably debated whether, as to nonstriking sympathizers, the present injunction possesses the precision and clarity required of state regulations impinging on constitutional freedoms of communication. We do not pass upon that question. This court's prime concern has not been the injunction itself but the means which the county's administrative officials have adopted for enforcing it against petitioners.
See Keyishian v. Board of Regents of New York (1967) 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629, 641; N.A.A.C.P. v. Button (1963) 371 U.S. 415, 432-433, 438, 83 S.Ct. 328, 9 L.Ed.2d 405; In re Blaney (1947) 30 Cal.2d 643, 650-653, 184 P.2d 892; cf. Canon v. Justice Court (1964) 61 Cal.2d 446, 450, 39 Cal.Rptr. 228, 393 P.2d 428.
Those who wilfully violate the lawful order of a court may be called to account by criminal or civil contempt proceedings or both. When the violator is prosecuted under Penal Code section 166, the adjudication occurs in the criminal, not civil, courts. The Code of Civil Procedure establishes a procedure for contempt adjudication within the framework of the civil action in which the alleged violation occurred. The two remedies, criminal and civil, are distinct and cumulative; pursuit of one does not bar resort to the other. Although similar in some ways and frequently applying to identical conduct, the two remedies have divergent characteristics. Criminal contempt is punitive, viewing the completed act as an offense against
California Code of Civil Procedure, §§ 1209-1222, 177-178. Under Code of Civil Procedure section 1209, subdivision 5, disobedience of any lawful order of a court constitutes contempt. Upon a finding of guilt, the contemner may suffer a fine not exceeding $500 or imprisonment not exceeding 5 days, or both. In jurisdictions where both criminal and civil contempts come before the court which issued the violated order, the demarcation between the two procedures is often shadowy. (See, e. g., Cheff v. Schnackenberg (1966) 384 U.S. 373, 86 S.Ct. 1537, 16 L.Ed.2d 620; Shillitani v. United States (1966) 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622; Goldfarb, The Contempt Power (1963) pp. 49-67; Dangel, Contempt (1939) pp. 74-76; Keller, Civil and Criminal Contempt (1967) 43 N.Dak.L.Rev. 244.) In California, where contempt is proecuted either as a misdemeanor in the criminal court or as a civil matter in the court which issued the violated order, the demarcation between criminal and civil contempts is unmistakable.
Pen.Code, § 11; In re San Francisco Chronicle (1934) 1 Cal.2d 630, 636, 36 P.2d 369; In re Morris (1924) 194 Cal. 63, 66-72, 227 P. 914.
California law does not designate who is to institute a civil contempt proceeding. (Code Civ.Proc. § 1211.) Criminal contempt, a misdemeanor, may be initiated by a criminal complaint signed by a public official or private citizen. (See Pen. Code, § 740; Oppenheimer v. Tamblyn (1959) 167 Cal.App.2d 158, 163, 334 P.2d 152.) In practice, the choice between civil and criminal contempt rests largely with the offended party, here the County of Sacramento. So far as the present record goes, administrative officials of the county did not choose to cite the social workers union or its officials for disobedience of the no-strike order. Rather, it chose to meet the strikers and their sympathizers on the streets. Administrative officials of the county made a second choice. They did not cite the strikers and picketers to respond to civil contempt proceedings in the superior court, which had issued the restraining order. Instead, the county officials invoked criminal mechanisms, inflicting mass arrests and multiple criminal prosecutions in the municipal court.
A famous strike against the government was halted after the United States Supreme Court upheld fines of $3,500,000 against the United Mine Workers and of $10,000 against John L. Lewis for violating a temporary restraining order prohibiting the walkout. (United States v. United Mine Workers (1947) 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884.)
The difference between civil and criminal contempt may be portentous in relation to First Amendment freedoms. At this point, it is well to recall that peaceful picketing is a mixture of ingredients, of which constitutionally protected communication is a part. Even when picketing is subject to injunctive restraint because of an inacceptable purpose, the communicative element does not dissolve into thin air. The picketing is only one element in a complex skein of activities, some of which take the form of constitutionally guaranteed expression. Both kinds of contempt action, civil or criminal, pose threats to expression, usually at a time when public interest is highest and when constitutional freedoms are most vital to the embattled participants. 'The threat of sanctions may deter N.A.A.C.P. v. Button,
Speaking for the Supreme Court in Bridges v. State of California, supra, 314 U.S. at pages 268-269, 62 S.Ct. at page 196, Mr. Justice Black put the matter as follows: 'We may appropriately begin our discussion of the [contempt] judgments below by considering how much, as a practical matter, they would affect liberty of expression. In must be recognized that public interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist. Since they punish utterances made during the pendency of a case, the [contempt] judgments below therefore produce their restrictive results at the precise time when public interest in the matters discussed would naturally be at its height. Moreover, the ban is likely to fall not only a a crucial time but upon the most important topics of discussion. Here, for example, labor controversies were the topics of some of the publications. Experience shows that the more acute labor controversies are, the more likely it is that in some aspect they will get into court. It is therefore the controversies that command most interest that the decisions below would remove form the arena of public discussion.'
A civil contempt citation brings the contemner before the court which issued issued the restraint. If, as here, the restraint was issued ex parte, the court has an opportunity to reexamine the injunctive language in the light of the conduct which followed it. It may decide that a broad net of restraining words, woven in advance by the plainfiff's attorneys, swept up an unintended and unneeded catch. Being under no restraint in reviewing its own action, the court may decide that its order was unnecessarily broad. It may conclude that the contemner had indeed attempted to 'induce' a prohibited objective, but only by a constitutionally assured means, for example, a paid newspaper advertisement. (See Bridges v. State of California, supra, 314 U.S. 252, 62 S.Ct. 190.) The court may segregate the chaff of symbolic and relatively ineffectual conduct from the wheat of action directly creating or aggravating the prohibited condition. The sanction may be proportioned to the injury caused by the disobedience. The court may dismiss some with a warning, hold some in the restraint of suspended sanctions and impose penalties on others. The remedies, however varied, may be closely tailored to the needs of the injured plaintiff and to the ongoing protection of his opponents' constitutional freedoms. All this may be accomplished without arrests, with minimal jailings and without the threatened stigma of criminal convictions.
Criminal contempt is directed at the punishment of past acts, not obedience for the future. (Gompers v. United States (1914) 233 U.S. 604, 606, 34 S.Ct. 693, 58 L.Ed. 1115.) Far more than civil proceedings, the threat of criminal prosecution inflates the restrictive pressures on the communicative aspects of the dispute. The stigma and fear of arrest, jail and prosecution may deter all but the most hardy, repressing not only enjoinable conduct but that which is constitutionally assured. The stifling immediacy of arrest and prosecution occurs when public interest is at its height and when constitutionally protected appeals to public opinion are most vital. Vindication by acquittal may take place after the conflict has died and the need for free communication long since past. The criminal remedy has little of the flexibility of the civil remedy. However symbolic and ineffectual, however harmless to the offended plaintiff, the violation of a lawful order eventuates in the stigma of criminal conviction.
There is time for resort to criminal prosecutions when and if civil procedures fail. The need is not to sweep the streets protesting citizens but for measures soberly adapted to the protection of the complainant's rights. In most labor disputes the complainant's injury lies in economic damage. In this exceptional dispute the injury lies in the impediment of the county's public functions. There is no possible claim that civil contempt proceedings were powerless to control the four parading petitioners, obviating whatever threats to county functions they posed. It is inconceivable that the paraphernalia of criminal law enforcement were indispensable to the free flow of county government. The county's choice was harsh, arbitrary and excessive. Far When conduct is freighted with elements of free speech and assembly, the choice between civil and criminal deterrents cannot be left in the uncontrolled hands of administrative officials. The choice lends itself to harsh and discriminatory enforcement, creating a restraint not limited to enjoinable conduct but enveloping all freedom of discussion which might conceivably fall within its reach. The point is not that the picketing may have an 'illegal purpose,' hence be vulnerable to injunction. The point is that, in advance of judicial segregation between restrainable and constitutionally protected conduct, the evocation of police, jail and bail outstrips the complainant's need for protection and, through fear, creates an advance restraint upon constitutionally protected conduct. There is need 'for appropriate limitations on the discretion of public officials where speech and assembly are intertwined with regulated conduct.' Sanctions must be no more repressive than those minimally appropriate to achieve the valid objectives of law and policy which legitimized the restraint in the first instance. When remedial procedures suffice, arbitrary resort to punitive processes represents an application of the punitive statute inimical to First Amendment objectives.
Cf. In re Blaney, supra, 30 Cal.2d at p. 653, 184 P.2d 892; In re Bell (1942) 19 Cal.2d 488, 496, 122 P.2d 22.
Cox v. State of Louisiana (1965) 379 U.S. 559, 574, 85 S.Ct. 476, 486, 13 L.Ed.2d 487; see also Cox v. State of Louisiana (1965) 379 U.S. 536, 555-558, 85 S.Ct. 453, 13 L.Ed.2d 471.
Dealing with an analogous problem, the federal Supreme Court has said: '* * * even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' (Shelton v. Tucker (1960) 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231.)
In the context of the undisputed facts, Penal Code section 166, subdivision 4, cannot constitutionally apply to petitioners' conduct. The writ is granted and petitioners ordered discharged.
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'4. Willful disobedience of any process or order lawfully issued by any Court;
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Penal Code section 19 provides that in the absence of specific provision 'every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding five hundred dollars, or by both.'