City of Carmel-By-The-Sea v. Young

MOSK, J.

I dissent. The majority opinion cannot be supported either procedurally or substantively.

I

At the threshold we should note the posture of this “litigation.” I employ quotation marks because the parties to this proceeding adopted a convivial atmosphere indicating that the lawsuit was contrived, that there is no legitimate controversy, that the rights of no individuals are involved, that the parties are friendly and not adversary, and that they are invoking the jurisdiction of the court merely for an advisory opinion. As recently as People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, ,912 [83 Cal.Rptr. 670, 464 P.2d 126], this court pointed out that “The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court.”

No individual officeholder or candidate for public office is being prosecuted or is in imminent peril of prosecution. No individual who has failed or refused to comply with the statute in question is a party to this action. Indeed, the final date for filing financial reports has not yet passed. In short, there is no actual controversy and no ripe issue in this “litigation.”

The jurisdiction of United States courts is restricted to “cases” and “controversies.” (U.S. Const., art. III, § 2.) The California courts are given jurisdiction over “causes.” (Cal. Const., art. VI, § § 10-12.) As in the federal system, in California the remedy of declaratory relief is wholly statutory (Code Civ. Proc., § 1060), and is limited to “cases of actual controversy relating to the legal rights and duties of the respective parties. . . .” In obedience to this statutory language, it has long been held that declaratory relief will be denied in the absence of a legitimate controversy (Hayden Plan Co. v. Friedlander (1929) 97 Cal.App. 12, 14 [275 P. 253]), that the plaintiff must demonstrate a personal tangible interest in obtaining a judg*276ment (Conroy v. Civil Service Com. (1946) 75 Cal.App.2d 450, 455 [171 P.2d 500]), that mere conjecture that at some time in the future a controversy might arise is not sufficient (Merkley v. Merkley (1939) 12 Cal.2d 543, 547 [86 P.2d 89]), that attempts to get prior approval of conduct is “frowned upon” (Brown v. Board of Police Commrs. (1943) 58 Cal.App.2d 473, 479 [136 P.2d 617]) and that in general declaratory relief is an inappropriate vehicle to employ in determining validity of criminal sanctions. (Oppenheimer v. Clifton’s Brookdale, Inc. (1950) 98 Cal.App.2d 403 [220 P.2d 422].)

Normally this court would not rule on constitutionality of a legislative enactment until some individual, either convicted or faced with imminent prosecution, seeks relief either on appeal from a conviction or on petition for an extraordinary writ. As stated in Parker v. Los Angeles County (1949) 338 U.S. 327, 333 [94 L.Ed. 144, 147, 70 S.Ct. 161]: “The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” This court, too, in Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65 [195 P.2d 1], expressed the policy of courts of last resort not “to reach out and unnecessarily pronounce upon the constitutionality of any duly enacted statute.” Employment of declaratory relief to ascertain the validity of a statute containing criminal sanctions is particularly inappropriate in the absence of a factual context.

The Attorney General and the Legislative Counsel have filed amicus curiae briefs, and both have been helpful to the court. However, amici appearances are not sufficient to negate the essentially nonadversary nature of this “litigation.”

The petition for hearing was improvidently granted. On the ground that no actual controversy is presented, I would reverse the judgment and remand to the trial court with directions to dismiss the action.

II

For more than a century, the Supreme Court has cautioned against rendering judicial decisions on purely political matters. (Luther v. Borden (1849) 48 U.S. (7 How.) 1 [12 L.Ed. 581].) This case is a textbook illustration of the vice inherent in abandonment of traditional judicial aloofness from contrived litigation. By giving what amounts to an advisory opinion, the majority have catapulted this court into a political thicket. Though in legislative debates some policy misgivings were expressed, the Legislature responded to what it conceived to be public demand and adopted the disclosure law. Expressing similar misgivings, the Governor nevertheless signed *277the measure into law.1 Adherence to the traditional doctrine of separation of powers renders it unseemly for the judiciary to resolve the policy reservations expressed by the legislative and executive branches of government. Statutory desirability must be entirely their responsibility, and use of courts for that determination results in an invasion of legislative and executive prerogatives.

Thus there are two impelling reasons for halting our inquiry short of the merits: lack of a ripe controversy, and the essentially political nature of the problem.

Ill

Nevertheless, in order not to be deemed acquiescent in the majority views on the merits, I continue on to discuss the issues as framed by the briefs and the opinion.

That there are conflicting interpretations of a statute is hardly a startling phenomenon in the annals of jurisprudence. If a divergence of views on legislative intent or draftsmanship were the criterion for unconstitutionality, few laws on our books could withstand an assault upon their validity.

Yet the majority find this statute subject to dispute, and, after considering the desirability of the legislation in a discussion bordering on hyperbole, they resolve all doubts in favor of unconstitutionality. The traditional concept in the appellate function is that every intendment favors constitutionality (Shealor v. City of Lodi (1944) 23 Cal.2d 647, 653 [145 P.2d 574]; Miller v. Municipal Court (1943) 22 Cal.2d 818, 828 [142 P.2d 297]), and that a reviewing court may not substitute its judgment concerning the wisdom of a statute for that of the Legislature. (In re Madera Irrigation Dist. (1891) 92 Cal. 296, 307-308 [28 P. 272, 27 Am.St.Rep. 106, 14 L.R.A. 755], and every constitutional law case for the eight decades thereafter.)

The majority set the melancholy tone of their opinion at the outset: certain municipal officers are so distraught at the prospect of revealing their financial resources that they have threatened to resign. Of what possible relevance to constitutionality is that circumstance? If any public officials deem their personal economic privacy to outweigh their civic responsibility, that is their right.2 But to argue a “crippling effect upon the affairs of *278municipal government” from prospective resignations which may or may not materialize, as does the plaintiff, is to suggest the indispensability of individual officeholders, a concept that is alien to the democratic process. I am confident that there are many qualified citizens in the picturesque city of Carmel-by-the-Sea who will come forward to serve their municipal government.

The majority cite a plethora of cases involving the basic values “implicit in the concept of ordered liberty” and I heartily endorse the principles of those cases. But with few exceptions the cited authorities involve assaults upon First Amendment rights. If any such rights are in jeopardy by virtue of the provisions of this statute, neither plaintiff nor the majority have alerted us to the identifiable dangers. Precisely which provision of the First Amendment does this statute offend? The majority have given no clue.

After relying primarily upon First Amendment authorities, the majority suddenly change their course and invoke the Fourth Amendment. Yet there is no recognizable relationship between mere disclosure of sizeable pecuniary interests by those who choose to be officeholders or candidates and the constitutional right to security of persons and effects and freedom from unreasonable searches and seizures. To an analysis of this statute the Fourth Amendment is a non sequitur. Rather than belabor the verities of the First and Fourth Amendments, with which no one quarrels, it is much more fruitful to discuss the legislative purpose of the statute, the manner in which the purpose is served, and the validity of that manner.

The legislative purpose is set forth in Government Code section 3600, which reads as follows:

“The Legislature finds and declares as follows:

“(a) The people have a right to expect from their elected and appointed representatives at all levels of government assurances of the utmost in integrity, honesty and fairness in their dealings;
“(b) The people further have a right to be assured to the fullest extent possible that the private financial dealings of their governmental representatives, and of candidates for those offices, present no conflict of interest between the public trust and private gain; and
“(c) The representative form of government is founded upon a belief that those entrusted with the offices of government have nothing to fear from full public disclosure of their financial and business holdings, provided those officials deal honestly and fairly with the people.

“To these ends, the Legislature enacts this division. The Legislature hereby intends to sustain, to the extent necessary, public confidence in gov*279ernment at all levels, by assuring the people of the impartiality and honesty of their officials in all governmental transactions and decisions.”

The section concludes with this significant admonition: “The provisions of this division are to be construed liberally, to the end that the public interest be fully protected.” (Italics added.)

The plaintiff would have us dissect the statute section by section, clause by clause, to discover minute latent defects. In so doing, plaintiff not only departs from the liberal construction commanded by section 3600, but it urges upon us a technique contrary to traditional methods of arriving at statutory construction. (People v. Globe Grain & Mill. Co. (1930) 211 Cal. 121, 127 [294 P. 3].)

Authorities are legion and unanimous on the subject, but none has more frequently written on methods of statutory construction than Justice Frankfurter, who noted that “Legislative words are not inert, and derive vitality from the obvious purposes at which they are aimed” (Griffiths v. Commissioner of Int. Rev. (1939) 308 U.S. 355, 358 [84 L.Ed. 319, 322, 60 S.Ct. 277]), and that “Statutes, including penal enactments, are not inert exercises in literary composition. They are instruments of government . . . .” (United States v. Shirey (1959) 359 U.S. 255, 260 [3 L.Ed.2d 789, 793, 79 S.Ct. 746].) Again and again he taught us that a court is bound “to find that interpretation which can most fairly be said to be embedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that [the legislative body] manifested” (N.L.R.B. v. Lion Oil Co. (1957) 352 U.S. 282, 297 [1 L.Ed.2d 331, 342, 77 S.Ct. 330]), and a court’s duty is to derive meaning “not from specific language but by fashioning a mosaic of significance out of the innuendoes of disjointed bits of a statute.” (Palmer v. Massachusetts (1939) 308 U.S. 79, 83 [84 L.Ed. 93, 97, 60 S.Ct. 34].) Justice Cardozo admonished very simply that “the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view.” (Panama Refining Co. v. Ryan (1935) 293 U.S. 388, 439 [79 L.Ed. 446, 468, 55 S.Ct. 241] (dissenting opinion).) Justice Learned Hand defined the task of the judge as to “try as best he can to put into concrete form what [the common] will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed . . . .” (Hand, The Spirit of Liberty (1952) p. 109.)

The majority assume “that a requirement of relevant disclosures of investments or assets would bear a rational relationship to the valid stated purpose of preventing conflicts of interest,” but then they proceed to reach a value judgment “that the purpose can be achieved by regulations drawn more narrowly and precisely than is attempted by the statute now before us.” In *280short, the majority gratuitously advise the Legislature: Your statute relates to a valid public purpose, but we think the purpose should be accomplished in some other manner. This court has no right to substitute its policy determinations for those of another coequal branch of government. “The day is gone,” wrote Justice Douglas for a unanimous court in Williamson v. Lee Optical Co. (1955) 348 U.S. 483, 488 [99 L.Ed. 563, 572, 75 S.Ct. 461]) when a court will strike down state laws of an economic nature “because they may be unwise, improvident, or out of harmony with a particular school of thought.” If this act is the product of misdirected zeal, if it should be amended or if another statute can better serve the avowed legislative purpose, the Legislature will respond appropriately. For this court to undertake a process of judicial repeal is clearly an unwarranted usurpation of a strictly legislative prerogative. (People v. Arthur Murray, Inc. (1965) 238 Cal.App.2d 333, 344 [47 Cal.Rptr. 700].)

As Justice Frankfurter pointed out effectively and at length in his concurring opinion in American Federation of Labor v. American Sash & Door Co. (1949) 335 U.S. 538, 553-557 [93 L.Ed. 222, 230-233, 69 S.Ct. 258, 6 A.L.R.2d 481]: “Even where the social undesirability of a law may be convincingly urged, invalidation of the law by a court debilitates popular democratic government. Most laws dealing with economic and social problems are matters of trial and error. That which before trial appears to be demonstrably bad may belie prophecy in actual operation. It may not prove good, but it may prove innocuous. But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests—the people. . . . But there is reason for judicial restraint in matters of policy deeper than the value of experiment: it is founded on a recognition of the gulf of difference between sustaining and nullifying legislation. This difference is theoretical in that the function of legislating is for legislatures who have also taken oaths to support the Constitution, while the function of courts, when legislation is challenged, is merely to make sure that the legislature has exercised an allowable judgment, and not to exercise their own judgment, whether a policy is within or without ‘the vague contours’ of due process. . . .

“Our right to pass on the validity of legislation is now too much part of our constitutional system to be brought into question. But the implications of that right and the conditions for its exercise must constantly be kept in mind and vigorously observed. Because the Court is without power to shape measures for dealing with the problems of society but has merely the power of negation over measures shaped by others, the indispensable judicial requisite is intellectual humility, . . . Matters of policy, however, are by definition matters which demand the resolution of conflicts of value, and the elements *281of conflicting values are largely imponderable. Assessment of their competing worth involves differences of feeling; it is also an exercise in prophecy. Obviously the proper forum for mediating a clash of feelings and rendering a prophetic judgment is the body chosen for those purposes by the people. Its functions can be assumed by this Court only in disregard of the historic limits of the Constitution.” (Fn. omitted.)

IV

The right of privacy posited by the majority is reminiscent of fears and criticism of every statute requiring disclosure in an economic field. The pages of history are replete with similar forebodings. The theme reverberated throughout the land when the federal income tax amendment was proposed. When the Corporate Securities Act was adopted in California, it was urged that “the legislature exceeded its powers and thereby infringed upon the constitutional rights of persons to freely enjoy, possess and dispose of property acquired or owned by them.” (People v. Craven (1933) 219 Cal. 522, 525 [27 P.2d 906].) Similar opposition was voiced to the disclosure required of real estate brokers by the commissioner, and, it was said, the statute was arbitrary, indefinite and the terms inadequately defined. (In re Sidebotham (1938) 12 Cal.2d 434, 437 [85 P.2d 453, 122 A.L.R. 496].) Zoning ordinances have consistently been attacked for their invasion of private property rights, and just as consistently upheld. (Clemons v. City of Los Angeles (1950) 36 Cal.2d 95, 98 [222 P.2d 439].) Slum clearance and redevelopment have regularly been opposed for their limitation upon the right to own and use private property. (Berman v. Parker (1954) 348 U.S. 26 [99 L.Ed. 27, 75 S.Ct. 98].) Police officers, called as witnesses in vice inquiries, have maintained their income tax returns could not be subpoenaed because of their right to privacy. (Application of Frey (1948) 26 N.J. Misc. 193 [58 A. 2d 594].)

Nevertheless, compulsory disclosure for purposes of licensing and regulation has been held to be constitutional in a wide variety of economic enterprises. (See, e.g., Nebbia v. New York (1934) 291 U.S. 502 [78 L.Ed. 940, 54 S.Ct. 505, 89 A.L.R. 1469] [unfair trade practices]; Hall v. Geiger-Jones Co. (1917) 242 U.S. 539 [61 L.Ed. 480, 37 S.Ct. 217] [regulation of securities]; Brazee v. Michigan (1916) 241 U.S. 340 [60 L.Ed. 1034, 36 S.Ct. 561] [employment agencies]; Serve Yourself Gas etc. Assn. v. Brock (1952) 39 Cal.2d 813 [249 P. 545] [content of signs]; Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232 [163 P.2d 704] [charitable solicitors]; In re Bear (1932) 216 Cal. 536 [15 P.2d489, 83 A.L.R. 1402] [labeling of food products]; In re Gray (1929) 206 Cal. 497 [274 P. 974] [sale of drugs]; In re Holmes (1921) 187 Cal. 640 [203 P. 398] [secondhand book dealers]; *282Howard v. State of California (1948) 85 Cal.App.2d 361 [193 P.2d 11] [painting contractors].) The list is almost iimitless.

The United States Supreme Court held in Shapiro v. United States (1948) 335 U.S. 1, 32-33 [92 L.Ed. 1787, 1807, 68 S.Ct. 1375], that “there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency .... But no serious misgiving that those bounds have been overstepped would appear to be evoked when there is a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection

A dispassionate reading of the statute at issue reveals a clear relationship between “the public concern,” as expressed in section 3600 and the activity regulated. Indeed the “regulation” is minimal since it involves nothing more than an initial report and a supplement once a year.

The statute is not vague. It requires an annual disclosure of financial interests (§ 3700) by public officers who are enumerated (§ 3605) and by candidates for public office (§ 3702). Financial interests are defined as those in excess of $ 10,000 in value in any corporation, or in any business entity which is subject to regulation by any state or local public agency. A definition of public agency is set forth (§ 3601) and other terms, such as corporation (§ 3602), investments (§ 3603), and ownership of shares (§ 3604) are defined.

It is not inconceivable that a controversy may develop as to whether an individual is covered as a “career executive” under section 3605. If and when that problem arises, the courts will consider it in a factual context. The speculative nature of a potential difficulty does not justify invalidating an entire statute.

The statute is not overbroad. Even though an act may cause certain hard-, ships to individuals, if it rationally relates to the legislative purpose, it may be upheld.3 ****8 (Lewis Food Co. v. State of California (1952) (110 Cal.App.2d 759, 762 [243 P.2d 802].) Legislative findings are not binding on courts, but *283they are entitled to considerable weight. (The Housing Authority v. Dockweiler (1939) 14 Cal.2d 437, 449-450 [94 P.2d 794].) It would seem abundantly clear that there is a direct relationship, in the legislative view, between disclosure of financial holdings of public officers and avoidance of conflicts of interest. We should not find, as a matter of law, that this legislative determination is unsupportable. Indeed, a persuasive case in support of the legislative finding can be made, as pointed out infra.

This case involves no restriction upon political activity, such as the court found in Fort v. Civil Service Commission (1964) 61 Cal.2d 331 [38 Cal.Rptr. 625, 392 P.2d 385], Kinnear v. City etc. of San Francisco (1964) 61 Cal.2d 341 [38 Cal.Rptr. 631, 392 P.2d 391], Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499 [55 Cal.Rptr. 401, 421 P.2d 409], and Vogel v. County of Los Angeles (1961) 68 Cal.2d 18 [64 Cal.Rptr. 409, 434 P.2d 961]. There is no parallel whatever between inhibitions on political activity and this statute, the operation of which merely requires disclosure of sizeable pecuniary interests of certain public officials and candidates for public offices. As this court said in Bagley (at p. 505), “government may, when circumstances inexorably so require, impose conditions upon the enjoyment of publicly conferred benefits despite a resulting qualification of constitutional rights.” (See Di Santo v. United States (6th Cir. 1937) 93 F.2d 948, cert, den., 303 U.S. 662 [82L.Ed. 1121, 58 S.Ct. 829].)

Courts have consistently upheld Corrupt Practices Acts (see annotations collected in 69 A.L.R. 377), which have required reporting of campaign expenditures by candidates for public office. Such legislation has been deemed protective against corrupt election practices and the danger that “those who have . . . aided the successful candidate may expect and demand favors in return during his occupancy of the office.” (Warden v. Brown (1960) 185 Cal.App.2d 626, 628 [8 Cal.Rptr. 518].)

The same rationale applies to this financial disclosure law. Its provisions are designed to provide the public with knowledge of the significant economic factors, if any, which may influence the exercise of a public official’s decisional process. For that purpose, it is not unreasonable for the Legislature to require that individuals sacrifice their economic privacy when they assume public office.

In arguing their overbreadth theme, the majority refer to 85 conflict of interest statutes already on our books. Such statistical detail demonstrates only that there are 85 laws which under enumerated circumstances compel *284financial disclosure and that not one of these disclosure requirements has been held to violate the First' Amendment, the Fourth Amendment, the right of privacy or any other constitutional provision. It is singular that the Legislature, in adopting its 86th enactment in the field, has now offended constitutional principles.

The majority attempt to distinguish between “the relevant and the irrelevant private financial affairs” of public officials {ante, p. 272). Justice Holmes once wrote that “Men must turn square corners when they deal with the Government.” (Rock Island etc. R.R. v. United States (1920) 254 U.S. 141, 143 [65 L.Ed. 188, 189, 41 S.Ct. 55].) One may seriously doubt that any investments over $10,000 are irrelevant to a public official and his motivations, or that a major interest in any corporation can be irrelevant in this era of vast conglomerate empires. Public ventilation is generally the most salutary course. Whether this court believes it is or not, the Legislature has found revelation of such financial interests to be relevant to avoidance of conflicts of interest. This legislative finding is clear, unambiguous, reasonable and its statutory application is in no sense over-broad.

Finally, the majority find “no overriding necessity” justifying the statute. To challenge the purpose or necessity of a statute is not a judicial function. There is no rational justification for substituting a finding by this court for the necessity found by the Legislature in section 3600.

For reaffirmation of the principles of disclosure, see the Governor’s State of the State address to Joint Session of the Legislature, January 6, 1970. (Senate Daily J., p. 59; Assembly Daily J., p. 73.)

This right does not always exist. Periodically some individuals—from Henry David Thoreau to Vivian Kellems—refuse to reveal their assets or to pay their taxes, on the ground of invasion of privacy. By their intransigence none has yet successfully prevailed in establishing the unconstitutionality of income tax laws.

A statute is not unconstitutional because it does not thoroughly cover the subject (In re Boyd (1930) 108 Cal.App. 541, 543 [291 P. 845]); or is novel and unusual (People v. La Fetra (1921) 230 N.Y. 429 [130 N.E. 601, 607, 16 A.L.R. 152]); does not include matters which might have been included (Arizona Eastern R. Co. v. Matthews (1919) 20 Ariz. 282 [180 P. 159, 163, 7 A.L.R. 1149]); may be impracticable or unworkable (In re Mossmain Drainage Dist. (1931) 90 Mont. 1 [300 P. 280, 285]); may operate in an unduly onerous manner (State v. Crescent Cotton Oil Co. (1918) 116 Miss. 398 [77 So. 185]); may cause hardship (International Har*283vester Credit Corp. v. Goodrich (1954) 308 N.Y. 731 [124 N.E.2d 339]); may cause inconvenience (Bonner v. Jackson (1923) 158 Ark. 526 [251 S.W. 1, 3]); or does not create a perfect plan to accomplish its purpose (Williamson v. Lee Optical Co. (1955) supra, 348 U.S. 483).