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INTEREST OF AMICUS CURIAE

Since the 1980's the connection between urban disorder and serious crime has become increasingly apparent. Disorder leads to fear. Fear leads to withdrawal. Withdrawal increases the level of serious crime. (See G. Kelling & C. Coles, Fixing Broken Windows (1996) pp. 19-20.) Aggressive panhandling is a substantial component of the problem. (Id. at p. 12.) Litigation against controls on panhandling can severely hamper a city's efforts to restore order and halt the downward spiral of urban decay. (See id. at pp. 207-208.)

To assist cities in drafting constitutional ordinances, amicus CJLF published, in 1993, A Guide to Regulating Panhandling. The model ordinance suggested in that booklet has been largely adopted in a number of cities in California and elsewhere. Although the Los Angeles ordinance differs in a number of areas, it follows the general policy of the CJLF model: allow panhandling generally but prohibit (1) particularly aggressive manners of panhandling, and (2) panhandling in places where the targets are particularly vulnerable.

Plaintiffs seek to impose such severe constitutional restrictions on ordinances of this type as to make the drafting of an effective ordinance virtually impossible. Such a result would be contrary to the interests CJLF was formed to protect. Amicus CJLF therefore has an interest in this case.

SUMMARY OF FACTS AND CASE

Effective August 15, 1997, the Los Angeles City Council enacted ordinance No. 171664, Los Angeles Municipal Code section 41.59, to regulate aggressive solicitation. The ordinance is limited to communications for "an immediate donation of money or other thing of value or soliciting the sale of goods or services." (L.A. Mun. Code, § 41.59(a)(1).) The statement of plaintiffs⁽¹⁾ that the ordinance would apply to mere distribution of leaflets urging donations, without any on-the-spot collections (see [Corrected] Respondents' Brief in Opposition ("Resp. Brief") at p. 20), is not correct.⁽²⁾

The ordinance prohibits soliciting "in an aggressive manner," as defined, "in any public place," as defined. (L.A. Mun. Code, § 41.59(b)(1).) Public places include both public forums, such as streets, and nonpublic forums, such as schools. (L.A. Mun. Code, § 41.59(a)(2).)

Plaintiffs Los Angeles Alliance for Survival, Los Angeles Coalition to End Hunger and Homelessness, and Jerry Rubin filed suit in United States District Court to enjoin enforcement of the ordinance on both state and federal constitutional grounds. The plaintiffs

"are groups and individuals that solicit immediate donations of money from members of the public on public fora throughout the City of Los Angeles." (Los Angeles Alliance for Survival v. City of Los Angeles (9th Cir. 1998) 157 F.3d 1162, 1164 ("L.A. Alliance").)

The district court granted the injunction on state constitutional grounds. (Ibid.) The district court declined to abstain under the Pullman doctrine, finding the state issue clear (see Appellants' Opening Brief at p. 4), despite conflicts in the decisions of both the California Courts of Appeal and the United States District Courts. (See L.A. Alliance, 157 F.3d at p. 1165 and fn. 4.)

On appeal, the United States Court of Appeals for the Ninth Circuit certified the following question to this Court, pursuant to rule 29.5 of the California Rules of Court:

"Is an ordinance that seeks to regulate the time, place and manner of solicitation of money or other thing of value or the sale of goods or services content based under the Liberty of Speech Clause of the California Constitution? Cal. Const. art. I, § 2." (L.A. Alliance, supra, 157 F.3d at pp. 1162-1163, footnote omitted.)

On November 6, 1998, this Court accepted the question, restated as follows:

"What is the proper standard under article I, section 2 of the California Constitution for analyzing the constitutionality of ordinances governing solicitations, such as Los Angeles Ordinance No. 171664?"

The Ninth Circuit notified this Court that it had no objection to the restatement of the question.

SUMMARY OF ARGUMENT

Further, a regulation need not be the least restrictive means to achieve the government's purpose, so long as it substantially furthers that purpose. The fact that fraud and duress may be punished criminally does not prevent the government from establishing prophylactic measures to help prevent those crimes from occurring.

The California Liberty of Speech Clause does not differ from the federal First Amendment on the points relevant to this case. Both the time, place, and manner test and the expressive conduct test have been used in California cases addressing both state and federal claims.

This brief is limited to the application of the ordinance to public forums. The argument regarding nonpublic forums, particularly airports, is presented in the brief of amici City and County of San Francisco, et al.

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Footnote 1. For simplicity, we refer to the parties challenging the ordinance as "the plaintiffs" and those defending it as "the City." (Cf. Fed. Rules App.Proc., rule 28(d).)

Footnote 2. Justice Stevens has noted the "fashion in First Amendment litigation" of the party challenging an enactment to give it the most extreme interpretation possible. (See Regan v. Time, Inc. (1984) 468 U.S. 641, 693 (conc. and dis. opn.).) The trend evidently continues unabated.  
 
May 1999