TRANSCRIPT FOR "MOTION TO DISMISS" HEARING
Jan 21, 2011
Santa Cruz County Superior Court
701 Ocean St.
Santa Cruz, Ca. 95060
The Honorable JOHN GALLAGHER, Presiding Judge
ED FREY, defendant and attorney for the defense,
Assistant District Attorney, SARAH DABKOWSKI, for the prosecution
Peace Camp Six defendants, COLLETTE CONNOLLY, ARTHUR BISHOFF,
ELIOT ANDERSON, GARY JOHNSON, and ED FREY were present.
CHRISTOPHER DOYON, also a defendant was not present
THE HEARING BEGINS AT 3:50 PM
JUDGE JOHN GALLAGHER: Mr. Frey. I believe you are representing everyone on the motion to dismiss. Is that true?
ED FREY: Yes it is.
JUDGE JOHN GALLAGHER: Is there anyone else here in the courtroom waiting for a
matter to appear other than people represented by Mr. Frey? (silence)
Okay. I think we can take your matters now. I'll call them for the record.
So the matters that are remaining are the People v Eliot Mathew Anderson et al. Is Eliot
Mathew Anderson present?
ELIOT ANDERSON: Yes, sir.
JUDGE JOHN GALLAGHER: Perhaps all of Mr. Frey's clients could sit in the first row near
the bailiff station. If others sitting there would kindly vacate that area.
Gary Allen Johnson is present. Eliot Mathew Anderson is present. Mr. Frey is present.
Christopher Mark Doyon?
ED FREY: Is not here, your Honor
JUDGE JOHN GALLAGHER: Collette Marie Connolly is present. Good afternoon.
Arthur William Bishoff is present.
JUDGE JOHN GALLAGHER: Mr. Frey, Can you tell me anything about Christopher
Mark Doyon's status?
ED FREY: No. Mr. Doyon lives in a place that is very inaccessible, he lives about 20
miles out of town, and has no telephone. I don't know why my client is not in court.
JUDGE JOHN GALLAGHER: All right. Given that you are his counsel and you're
here, I am going to excuse his absence for the purposes of this hearing. And who is
handling this for the people?
DA SARA DABKOWSKI: Sara Dabkowski, representing the people
JUDGE JOHN GALLAGHER: Good afternoon to all the people
represented by Mr. Frey. I'm sorry you had to wait all day to
have this happen. Or perhaps all afternoon. I have read the moving papers, the opposition, and
the reply. And I will hear your arguments at this time. Mr. Frey it's your motion.
ED FREY: Thank-you, your Honor.
JUDGE JOHN GALLAGHER:How much time do you think you need?
ED FREY: I'd say 15 minutes.
JUDGE JOHN GALLAGHER: Excuse me . I need to deal with the media request. I have
a media request to record, photograph for broadcast submitted by the Santa Cruz Sentinel,
a Mr. Dan Coyro of the SENTINEL. Is Mr. Coyro present?
(voices: he's not present)
All right. Then if he's not present then I don't need to deal with that request. Mr. Frey,
your other request?
ED FREY : That it be recorded aurally.
JUDGE JOHN GALLAGHER:: "It IS being recorded by the court's recording system.
And that will be the only audio recording. If you want a copy that will be the official copy.
ED FREY: Very good.
JUDGE JOHN GALLAGHER: Ms. Dabkowski, how much time do you need?
DA SARA DABKOWSKI: I guess it will depend on if the court would like me to
address the specific issues: I'd say 10 minutes.
JOHN GALLAGHER: Perhaps, since to some extent this is an evidentiary hearing because
Mr. Frey has asked me to address a number of items for judicial notice. Why don't we first
address the issues of judicial notice. Mr. Frey, why don't you go forward.
FREY: Okay. The first is request for judicial notice is that the fact that this courthouse is a
place...that's traditionally been a location for public protest.
JOHN GALLAGHER: Do the people have a position on this?
DA SARA DABKOWSKI: Your Honor, I thought the type of fact... it's not the type of facts
that would be taken under judicial notice in the evidence subsection 452, facts that one would
take judicial notice of, items of common knowledge, like what kind of (unintelligible) there
would be on a particular day. Such as what day of the week is Feb. 14th is on. I don't think
it's the type of fact that the court can take judicial notice of.
ED FREY: Your Honor, I believe that we cited not section 452 for that, but we cited section
452 for that fact, but section 451 subdivision F
JUDGE JOHN GALLAGHER: "Facts and propositions of generalized knowledge that are
so universally known that they cannot reasonably be the subject of dispute."
ED FREY: Yes.
DA SARA DABKOWSKI: I'd have the same argument, that that is not something that is
generally universally known. It is a proposition or opinion. It could be disputed.
JUDGE JOHN GALLAGHER: Mr. Frey, your response?
ED FREY: Yes. Actually 452 (g) is probably the most appropriate : "Facts and
propositions that are such common knowledge within the territorial jurisdiction of
the court they cannot reasonably be the subject of dispute."
JUDGE JOHN GALLAGHER: All right. Is your response any different to that
sub- section Ms. Dabkowski?
DA SARA DABKOWSKI: No, your Honor.
JUDGE JOHN GALLAGHER: "Mr. Frey, I've lived in this community for roughly
31 years, and if I had been asked to say whether I think
that is a fact, that that is indisputable under any of these sections, even though I've been
coming to this courthouse for 32 years, my personal
opinion is "no". I know it's not my personal view that supports whether or not judicial
notice should be given. But I did want to tell you that
even as from someone who's been coming to this building for nearly 32 years, I would
not have found that that is true.
ED FREY : Can we think about all the times, for example, that the SEIU would hold
demonstrations here? And in front of the stairway over
in front of the high rise building. Then there's all the public groups that hold meetings and
public demonstrations here. SAM FARR came here
and spoke . It's a place where the public has gathered. I've been to about thirty or so myself
at this location. "
JUDGE JOHN GALLAGHER: Your specific request is that the County courthouse and
civic center of the City of Santa Cruz, City Hall....
you mean city hall, that complex?
ED FREY: Yes.
JUDGE JOHN GALLAGHER: Have been used as sites for public gatherings, public
demonstrations , for many decades and are still so used.
ED FREY: Yes
JUDGE JOHN GALLAGHER: You're not asking me to say that this is a frequent
occurrence, just that these occurrences have happened in these two locations for many
decades continuing till today. Is that a fair statement?
ED FREY: Yes.
Now Ms. Dabkowski, now that I'm focusing on that particular language, do you have
anything to add?
DA SARA DABKOWSKI : I guess I would add that Judicial notices are irrelevant,
since what we are arguing today is whether or not 647 (e) is valid or invalid on its face
and this particular judicial notice does not go to the argument and is irrelevant.
JUDGE JOHN GALLAGHER: Mr. Frey, what is your response to that?
ED FREY: Well, as I understand the demurrer process, and that is essentially what
this is as counsel has pointed out. Evidentiary facts...any facts are not permissible.
However, the exception is if facts are taken by judicial notice.
JUDGE JOHN GALLAGHER: That is the rule of law and that I accept that it is
ED FREY: It's relevant especially to our first amendment argument of course.
JUDGE JOHN GALLAGHER: I'm going to grant the request for judicial notice
as stated on number one. I'm not ruling whether that evidence is admissible on the
motion to dismiss.
ED FREY: "The second request for judicial notice is "the defendants purpose and
what they did was, well one of their purposes was, to protest the Sleeping Ban. And
that again was under section 452 (g).
JUDGE JOHN GALLAGHER: "I'm denying that request for judicial notice. I'm
guessing that Ms. Dabkowski, you won't want to talk me out of that decision?
DA SARA DABKOWSKI: No, thank you.
ED FREY: "The last request I have is one of those general propositions. That it is safer to
sleep in group when you are sleeping outside than it is to sleep by yourself."
JUDGE JOHN GALLAGHER: "I will deny that request for judicial notice. I assume
the people have no objection. Are there any other evidential matters before we go to arguments?
ED FREY: No.
DA SARA DABKOWSKI: Your Honor, I also would object to Mr. Frey's declaration.
JUDGE JOHN GALLAGHER: Is Mr. Frey's declaration attached to something?
DA SARA DABKOWSKI: I believe it was attached to the motion that he filed.
ED FREY: It is filed as separate document, I believe. It was filed contemporaneously
with our opening brief.
JUDGE JOHN GALLAGHER: I'm looking over all the files and I can't find it.
ED FREY: It may be in Mr. Anderson file as that is the case that it was filed under.
JUDGE JOHN GALLAGHER: do you have a copy?
ED FREY: I do. (gives Judge his copy)
JUDGE JOHN GALLAGHER: Let me refresh my recollection here. Mr. Frey, this would not be
something I could take judicial notice of in the demurrer process. This kind of submittal is not
acceptable, traditionally at least. So do you have any response to that?
ED FREY: No, I think in general counsel is right. We are challenging the statute on its face and
therefore to bring in new facts would not be appropriate. We have to just take just the statute itself.
JUDGE JOHN GALLAGHER: I will treat this as an evidential objection by Ms. Dabkowski. And
I will sustain that objection and not consider the contents of the declaration or the attachment or
any other references to the attachment. Any other evidential issues?
DA SARA DABKOWSKI: No, your honor.
JUDGE JOHN GALLAGHER: Let's go for it.
ED FREY: May I request of the court whether you have a tentative decision? Or if the court
wants to hear arguments on a particular issue vs a request for others?
JUDGE JOHN GALLAGHER: I don't have an opinion and I don't have a request for issues.
ED FREY: The point I would make first, your Honor, is that even though The Ninth Amendment
to the United States Constitution has hardly ever been cited by the Supreme Court of the United States.
The same can be said with regard to that portion of article 1 section 24 in the California State Constitution
that says basically the same thing the 9th Amendment says, and that too has not been a subject of
appellate review or application.
But we are faced with is applying the law set out in the Constitution directly in this case without
having to examine how other appellate judges have treated it. Obviously, there is almost no history
there. I don't know if the court had a chance to review the book I mentioned about the 9th amendment
in my briefs?
JUDGE JOHN GALLAGHER: If you did not submit it for me to review, I did not review it.
ED FREY: But I do cite several points made in that book about the 9th amendment that the purpose
of the 9th Amendment, was that the authors of the Bill of Rights were concerned that if we list certain
rights then are judges going to assume that those are the ONLY rights available? And that was precisely
what the drafters and the authors of the Bill of Rights did not want to happen. So that was the purpose of
putting it in --the 9th amendment in. To say clearly to everyone, especially the judges, that the
enumeration of these rights above --such as freedom of expression, freedom from unreasonable searches
and seizures, etc.--- are not, that list was not meant to exclude other rights that are retained by the People.
Rights which obviously are too numerous to mention, and too obvious to mention. As I said, the right to
breathe was not put into the Constitution. Because it's pretty obvious to everyone, if you can't breathe,
you can't live. I think the same thing can be said about the right to sleep. If one cannot sleep one will not
live very long. One cannot survive without sleeping. And that the right to sleep has to be one of those
JUDGE JOHN GALLAGHER: "Did the founding fathers side to protect any rights associated with
the physical process of living?
ED FREY: Not to my knowledge. I don't believe so. Of course the right to freedom of speech, freedom of
religion, unreasonable search and seizure, the right to counsel, the right to jury trial. It seems that none of
these have anything to do with bodily functions.
JUDGE JOHN GALLAGHER: Does that tell us something?
ED FREY: Yes, it tells me that those bodily functions are so ingrained in human life, so necessary to
human life that if one were to apply a modicum of common sense, one would say we need not list these
JUDGE JOHN GALLAGHER: Isn't it also a reasonable assumption that they were protecting
political rights but not physical rights?"
ED FREY: Well I think they were reserving all sorts of rights that were not listed, not specifically listed.
But I certainly couldn't give a catalog of what I would surmise to be what those rights might be. But the right
to sleep, I certainly would say is included in there, because, as I said, if you can't sleep you can't live.
JUDGE JOHN GALLAGHER: Is the right to pursuit of happiness anywhere found expressly in the Constitution?
ED FREY: Not in the United States Constitution, but in the California Constitution, it's right there:
the right to pursue and obtain happiness. That's another broad set of rights, article 1, section 1 of the
California Constitution that is extremely broad, and yet it has to mean something. It means, really,
that the people retain the right to do whatever they want to do so long as they don't interfere in someone
JUDGE JOHN GALLAGHER: the "Right to pursue happiness" was found in other documents around
the Revolutionary period. Were they not?
ED FREY: In the Declaration of Independence but not in the United States Constitution. But in the
California State Constitution.
JUDGE JOHN GALLAGHER: Don't you see the dichotomy there? By the time the Declaration of
Independence they were expressing that right, but by the time they got around to writing the Constitution,
they were focusing on political rights, and not more personal or physical rights.
ED FREY: Yes. I believe that's an accurate statement. The California Constitution, the drafters of that..
.actually it was adopted by the voters, I believe, in the State of California in 1874. They decided they
wanted to put it in. So we have that right as Californians. We have much greater rights as Californians
under the California Constitution than Americans generally do under the United States Constitution.
JUDGE JOHN GALLAGHER: But even in that much broader document, voters did not choose to
enumerate the rights you're seeking here. Is that correct?
ED FREY: Yes, it's correct. But again, for the same common sense reason. They wouldn't put in
"the right to breathe" because it would seem silly. Everyone has the right to breathe. It's kind of
absurd to put that in a legal document.
JUDGE JOHN GALLAGHER: I didn't mean to steer you off course. I just had some questions.
ED FREY: So I believe what we are talking about here is precisely what the drafters of the Bill of Rights
had in mind. And that is the right to do something that they weren't prepared to list in their very
basic list of political and civil rights listed in the Bill of Rights.
Then with regard to our second basic set of rights under due process of law. The 5th and 14th amendments
to the United States Constitution, generally that the law that we're dealing which here which outlaws
"lodging" whether it be on public or private property, at any time or at any place. There's no limitations
on it, there's no definitions on it. A citizen reading that law would have no clear idea whatsoever what is
permitted and what is prohibited. "Lodging" in general, means, as I have always understood the word,
living in a particular place. You are lodged in a house, you're lodged in a trailer. You're lodged at a big...
Yosemite Lodge. To me it's always implied a structure. Unless you're using it in the other term as when
an object gets "lodged" between two rocks, but that's not the sense in which the statute speaks, I don't think.
Unlawful lodging means a person is in a place where they are not supposed to be. How can a person know
what they can or can't do just by reading it?
Your Honor, as I pointed out in my opening brief, "lodge" has been used very specifically for various
statutory purposes in California and it is always surrounded with the rights that go along with real property
occupants; tenants rights; lodger's rights. That sort of thing. Even, as I point out, if you are considered a
"lodger" because you rent one room in a home, in a single family residence that is occupied by the owner,
you are then considered to be a "lodger." You can be ousted by the police from that, but you have to have 7 days
written notice before that can happen. It's one of the only cases where under landlord/tenant law, an unlawful detainer
is not necessary to dislodge someone from real property. You can just call the police and have them come.
In fact, if the policemen come to oust you, one of the questions they will ask the owner is, "Have you given this
person 7-days notice in writing?" If not, if the answer is "no," the policeman will go away. There is no right of
the owner to dislodge the person without having first given that 7 days written notice.
So reading this entire body of California law, a citizen could say, if I'm just sleeping in front of the courthouse,
I'm not lodging. Because "Lodging" has always implied that you had permission. That you have some sort of
written contract with the owner or the person who is in control of the property. Here we had no contract.
We just came and we slept. We didn't ask anybody first.
So we're not lodgers. Or we don't think we are lodgers and the statute doesn't make it clear. And because that's so,
that's one reason the law should be held void. Another basic reason it should be held void for vagueness is, of course,
that Sheriff's and the police have no guidelines for them to know what to do and what not to do, and who is breaking
the law and who isn't breaking the law. It opens up the situation to the possibility of arbitrary and capricious
enforcement and that is precisely the most important factor that the United States Supreme Court has held,
when present, to find the statute void for vagueness.
JUDGE JOHN GALLAGHER: You don't think the statutes acknowledges the permission
element in the standard for "lodging?"
ED FREY: It says "without permission" but what does "lodging" mean? Lodging implies a
structure--it imply s a lodge
or it implies.... If you are walking down the sidewalk and you're really tired and want to sit
down and rest, that doesn't
require permission, generally.
JUDGE JOHN GALLAGHER: But doesn't the statute provide definition to that when it
says "building, structure, vehicle, or place?"
ED FREY: No. That is so broad in includes every square inch in the State of California.
"Every place" in California. Every place.
It could be on a sidewalk. It could be in a park. It could be in front of the Courthouse.
JUDGE JOHN GALLAGHER: Why should any place be unprotected?
ED FREY: It's not that any place should be unprotected. What we need here are reasonable guidelines. For example,
if the County authorities felt it was not a good thing to have people sleeping here at night, they could write a regulation
or an ordinance that says "not here" "not permitted here" but they can't prohibit it everywhere in the county. Because the
people have a right to be here, and they have the right to remain here as I pointed out in the reply brief, there is a statute
in California which tries to answer the dilemma that public welfare authorities would have, "If a person is homeless,
how do we know where he resides?" Well, that statute says he resides where ever he remains unless he's called away.
So anyone who remains in the County of Santa Cruz, has a right to remain here....but this statewide statute takes away
his right to sleep while he remains here."
JUDGE JOHN GALLAGHER: Your time has been exceeded. But please take a minute to wrap up if you like.
ED FREY: I know I'm asking the court to do something that is unprecedented. But that's just in the nature of things.
We have these very broad Constitutional provisions. The fact that they've not been applied or referred to by other judges,
especially other appellate judges doesn't mean we can ignore them. Those are the basic rules that the court goes by, as
the court well knows. The Constitution must be applied. You can't just say those are just pretty sounding words.
Those words mean something. The right to pursue safety. The right to pursue privacy. The right obtain privacy.
The right to obtain safety. These words have to mean something and given meaning. And in this context, the right to
pursue happiness, the right to pursue privacy has got to include the right to sleep. Because otherwise, your life
is ruined if you can't sleep.
ASSISTANT DISTRICT ATTORNEY DABKOWSKI gives her summation
DA SARA DABKOWSKI: Your honor, Mr. Frey is correct that this is an unprecedented request he is making. And that there is no law which supports granting his untimely request. Let me point out that this is an untimely motion that is being treated like a demurrer. A demurrer is something that must be filed before a plea is entered. All defendants have entered pleas. And if a demurrer has not been filed prior to a plea, then all rights to a demurrer are waived. And that's something that's found in the penal code. And it is untimely to proceed as a demurrer. And that would be the proper motion or format to address these particular issues. Particularly the question of whether 647 (e) is void on its face. Because that is something that a demurrer definitely asks, whether the charge or code section is valid and addressing the code section on its merits and asking if 647 (e) is unconstitutionally vague.
Case law supports that it is not unconstitutionally vague. It does put people on notice. As case law says, it does have to "provide sufficient definite guidelines for a potential violator and to the public and sufficient definite guidelines to law enforcement" so there is not arbitrary enforcement of the particular section. In this case, there is sufficient information to give notice that it is illegal To 'lodge' somewhere you don't have permission. To "lodge" somewhere, it's a common word. It does put people on notice. It's a word that can mean that you are a lodger at a motel, spending the night, staying the night. Or as Mr. Frey pointed out, it can have a more permanent meaning. That you are a "lodger" in someone's home. But it is a common word that puts people on notice that they can't lodge, can't live, can't stay the night, can't sleep somewhere, can't set up roots somewhere if they don't have permission. So it's not unconstitutionally vague on its face as written. To lodge at a hotel, to live, stay the night, sleep somewhere, set up roots where they don't have permission.
So it is not unconstitutionally vague. Particularly because in this case a person can ask themselves, "What do I have permission to do here?" A person coming up the courthouse grounds at night should ask, what is it I can do here? I can't file a court case right now since the courthouse is closed. And I should know that no person gave me permission to sleep here.
And so there are guidelines to put the public on notice, to put law enforcement on notice, and put juries how have to decide on such things on notice. It's not unconstitutionally vague. It uses common words which have common meanings. No law is going to be absolutely perfect where every single time everyone has the exact same idea but the point it, it has to provide sufficient and definite guidelines, which this particular statute does.
Turning to the 9th amendment. There is no ninth amendment violation right here. There is no constitutionally protected "right to sleep." It's not a recognized right under the US Constitution nor under the California State Constitution. while sleep may be a need and a very important need, and in no way are we down-playing the importance of the need, and we're not unsympathetic to the plight of a lot of people, but here in Santa Cruz, homelessness is a pervasive and common issue here that we are all as a community dealing with. it's not a right at this time. It is not recognized as a right. There is no authority to support it. But there is no Ninth Amendment violation in this case. Nor is there any particular section of the California State Constitution either cited by counsel or otherwise that shows that there is any California violation in this case.
Finally, in Counsel's case, Counsel raised the issue that defendants' first amendment rights may have been violated. But the defendants were not cited for their speech. They were not being punished for any speech. They were cited for conduct after they were warned to leave. This is not a punishment on speech. 647 (e) on its face is content neutral. It doesn't in any way target particular types of speech or types of expressive conduct. It does have reasonable time, place, and manner regulations because 647 (e) just applies to areas where you don't have permission. As the cases we cited, it's reasonable for the government to maintain the safety, maintain the cleanliness of common places. That is a government interest that they can protect. The cleanliness of public spaces. They have a right to have reasonable time, place, and manner restrictions put on even expressive behavior and expressive speech. So I think it is reasonable time, place, and manner restrictions that you can't lodge in places where you don't have permission.
Is there anything else which the court specifically would like me to address?
JUDGE JOHN GALLAGHER: I don't think so. Mr. Frey, would you like to reply?
ED FREY'S FINAL ARGUMENTS
ED FREY: Just briefly, your Honor. When the People say there is no law that supports our motion, I'm sorry, but I have to basically disagree in a very arduous manner. The law that supports our motion is very strong. It's right, directly in the Constitution. It's not law that appellate judges have established, but it is law that is right in the Constitution. To say that "there is no law.." is simply inaccurate. With regard to providing guidelines, the only guideline is that counsel mentioned is the one that says you have to have permission. that means in effect that the requirement of getting consent from someone, then if you are so poor you can't afford a motel room, you have no where in the State of California where you can go and legally sleep. That is simply and morally unacceptable.
JUDGE JOHN GALLAGHER: Thank-you Mr. Frey and Ms. Dabkowski. You both made well-prepared written and oral presentations.
JUDGE JOHN GALLAGHER:"It's my intention to deny the motion to dismiss. I think the People make a good point when they say that "Sleeping is not a Constitutionally protected activity." And that this statute provides a reasonable time, place, and manner restriction. I am not unmindful of the difficult situations of people who don't have the assets or means to purchase lodging, don't have the means to purchase a campsite. And what it means to buy accommodations in a given area. But I don't think it was the intention of the people of California amending the Constitution to say that someone could sleep on any piece of public property or private property without permission as part of the pursuit of happiness under the State Constitution. I'm even more comfortable that the founders of the United States Constitution did not envision a "right to sleep" anywhere when they were drafting the United States Constitution's Bill of Rights and I think I followed that with my argument that that is a document that protects political rights and not physical rights and those who drafted the Bill of Rights did not envision to allow anyone to sleep on ANY public or private property without permission.
They did not envision an ingrained "right" to sleep anywhere when they were drafting the Constitution. As I suggested in my discussion that that is a document that highlights political rights and not physical rights.
I appreciate that as a society we have not found a good solution to the terrible economy we have in this State and in this country and we haven't for quite some time. But the People of the State of California and the people who wrote the Constitution did not intend it to allow the right of the people to sleep anywhere they wanted without permission from the landowners. I have to deny this motion to dismiss. So I'd be happy to set consistent dates as counsel wishes. Do the people move to intend to join these cases?
DA SARA DABKOWSKI: I guess I'll file a motion to join these trials unless Mr. Frey objects.
ED FREY: No. We don't object. We don't want separate trials. That would be wasteful to everyone.
JUDGE JOHN GALLAGHER: So you'll stipulate to the rejoinder?
ED FREY: Yes your Honor.
JUDGE JOHN GALLAGHER: Can you contact CHRIS DOYON and inform him his presence will be required at these trials?
ED FREY: Yes I will do that. Your Honor, may I make one additional one-sentence comment about your ruling?
JUDGE JOHN GALLAGHER:I request that you do not do that.
Transcription by Becky Johnson on March 18, 2011
PC 647 (e) Who lodges in any building, structure,
vehicle, or place, whether public or private,
without the permission of the owner or person
entitled to the possession or in control of it.