You got me, Justice Kline. I can't resist. Obviously I have to talk about any case that begins with the opening line: "This case presents the question whether it is a crime under California state law to urinate in public."
You need say no more. To slightly modify Renee Zellweger's line to Tom Cruise in Jerry McGuire: "You had me at 'urinate'."
I shan't keep you in suspense. The answer is "Yes". Yes, as in: "Yes, it's a criminal offense. No, you can't piss in public. Yes, please stop doing it on my lawn."
The thing is, though, I'm not really sure that's the right answer. And I say that even though Justice Kline's opinion is pretty darn good, and I agree with a lot of it.
Let me start out, however, with a fairly simple predicate. You'd think that if the Legislature wanted to ban public urination, they could do so pretty easily. How about this proposed statute: "Anyone who goes wee-wee in public is guilty of a crime." Now, I'm sure that our esteemed Legislature, filled as it is with lawyers and consultants and staffers and lobbyists, could do better. My point is simply that if they wanted to ban public urination, it wouldn't be that hard to say so, now would it?
Here's another thing. It know it ain't that hard because the Legislature in fact passed a statute that prohibits public urination. At least in particular places. Section 640(b)(8) of the Penal (no pun intended) Code expressly bans "urinating or defecating" in public. But only in public busses and the like. So apparently the Legislature knows how to pass a law that bans peeing if it wants to. But, significantly, there's no actual law against doing so in your routine, not-in-a-public-bus sort of setting.
This obviously ain't gonna stop the People of the State of California, however. Who busted David McDonald for public urination, and definitely want to convict him. Not, by the way, because we care very much about his pee. We don't, quite frankly. But during his arrest, we found some crack on him. And we definitely care about his crack. But if public urination isn't a crime, then there's no probable cause for the search. Hence, pretty much by definition, we care about the pee.
Lacking an actual statute that prohibits public urination, the Attorney General's Office puts its best people on this pisser of a case (yeah, I know: lame), and they come up with a plethora of statutes that arguably prohibit the act. (As an aside, the two Deputy AG's responsible for writing the brief -- Amy Haddix and Ann Wathen -- are both Berkeley undergrads. I bet that's exactly what they both hoped to be doing after they graduated and went to law school. "We're going to be pee lawyers!!") Justice Kline -- entirely rightly -- slaps down most of their arguments. For example, public urination isn't "littering" under Section 374 of the Penal Code, and the statutory definition that the trial court used to hold to the contrary doesn't apply. Similarly, Justice Kline holds that public urination also doesn't violate Section 375 -- which prohibits, inter alia, the possession or dissemination in public of "nauseous, sickening, irritating, or offensive" liquids -- either. (Although I do think that his arguments with respect to this statute are a bit weaker than his arguments with respect to Section 374; in part because they slightly conflict with some of the things he says vis-a-vis his ultimate conclusion).
But, in the end, Justice Klein holds that peeing in public is illegal because it constitutes a "public nuisance" and hence violates Section 370 and 372. Now, as you might expect, Justice Klein doesn't say that such conduct always constitutes a nuisance, and he expressly "doesn't reach" the question whether a hiker who has to go really, really bad and hence pisses on a trail has done anything illegal. But, he says, the parking lot here was not a trail in the wilderness, so convicted ye shall be.
A lot of this analysis is persuasive. But let me make two arguments to the contrary -- ones that apparently weren't raised in the case, but that may well suggest that Justice Kline's conclusion is perhaps erroneous.
First, due process. I'm really troubled by a statute that prohibits (largely-undefined) public nuisances, and especially as applied to public urination. Does such a criminal prohibition really give adequate notice of the acts governed by this statute sufficient to comply with the Due Process Clause? Particularly as applied to an act that the Legislature could easily prohibit with express language, this seems to me a tough question. Plus, the "hiker" hypothetical that Justice Kline fails to reach only deepens the constitutional problem. If -- and I think this is right -- peeing in the woods wouldn't constitute a public nuisance, then why does peeing in a dark and empty parking lot (in front of a closed restaurant) violate the statute? More significantly, what's the clear dividing line between the two, and how does the statute give adequate notice of this distinction? I think that there's a strong argument that it doesn't, and that the statue, as applied by Justice Kline, might well be constitutionally deficient. (Plus, never forget: The Legislature could easily prohibit this stuff. Why stretch a statute, and potentially stretch the Due Process Clause, merely because the Legislature elects not to get off its butt and prohibit the practice anywhere except on public busses?!)
Second, intent. There's a strong, strong argument, in my view, that the Legislature would not have intended Sections 370 and 372 to apply to public urination. Take a gander again at Section 640, which was the statute that the Legislature in fact passed regarding peeing in public. That statute makes it an infraction -- not a true criminal offense -- to pee on a bus. Which, in my mind, is a lot more offensive than peeing in an empty parking lot. Do we really think that the Legislature wanted a bigger penalty for peeing in a parking lot as opposed to peeing on a crowded bus?
More significantly, in my mind, when it passed Section 640, the Legislature expressly added a caveat, and stated that it's not a crime to pee in public -- even on a bus -- as a result of the person's "disability, age, or medical condition." By contrast, Sections 370 and 372 contain no such exceptions. Which means that a person could presumably be convicted under those statutes even if they totally couldn't hold it. I don't think that's what the Legislature intended when they passed those statutes. And if that's the case, it provides some evidence that the Legislature didn't intend Section 370 and 372 to cover public urination.
Sure, you can make counterarguments: That prosecutors would never charge someone really old who had to pee in public, or that common law doctrines (like the necessity defense, duress, mens rea, etc.) might avoid or invalidate convictions in such settings anyway. But I nonetheless think that the statutory difference between what the Legislature actually did in Section 640 and what exists in Sections 370 and 372 is pretty meaningful. And casts substantial doubt that we should interpret the latter statutes in the way Justice Kline advances in his opinion, especially in light of the lingering constitutional difficulties.
When the Legislature could easily -- and does -- speak in clear language, I think that says something. For this reason, I'm not at all confident that Justice Kline gets this one right. It's a good opinion. But it still might not reach the correct result.
That's my take, anyway.
P.S. - I'm not even going to tell you the mistake that I made when I initially published this post earlier today, a mistake that was identified by a bright -- and esteemed -- reader. I'll say only this: I promise, promise, promise that if they're ever standing side by side, I'll never, ever mistake Justice Kline for Justice Klein!
