BILL ANALYSIS Ó
SB 337
Page 1
SENATE THIRD READING
SB 337 (Kehoe)
As Amended August 30, 2011
Majority vote
SENATE VOTE :23-15
JUDICIARY 7-3
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|Ayes:|Feuer, Atkins, Dickinson, | | |
| |Huber, Huffman, Monning, | | |
| |Wieckowski | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Beth Gaines, | | |
| |Jones | | |
| | | | |
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SUMMARY : Provides that a landlord shall not prohibit a tenant
from posting or displaying political signs, as defined, except
under certain circumstances. Specifically, this bill :
1)Provides that a landlord shall not prohibit posting or
displaying political signs on or within any portion of the
tenant's dwelling unit that relate to any of the following:
a) An election or legislative vote, including an election
of a candidate to public office;
b) The initiative, referendum, or recall process; and,
c) Issues that are before a public commission, public
board, or elected local body for a vote.
2)Permits a tenant to post or display political signs in the
window or on the door of the premises leased by the tenant in
a multifamily dwelling, or from the yard, window, door,
balcony, our outside wall of the premises leased by a tenant
of a single-family dwelling.
3)Permits a landlord to prohibit a tenant from posting or
displaying political signs in the following circumstances:
a) The political sign is more than six square feet in size;
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b) The posting or displaying would violate a local, state,
or federal law; and,
c) The posting or displaying would violate a lawful
provision in the governing documents of a common interest
development, as specified.
4)Requires a tenant to post and remove political signs in
compliance with the time limits set by the ordinance for the
jurisdiction where the premises are located. Specifies that
if no local ordinance exists or if the local ordinance does
not include a time limit, a landlord may establish a
reasonable time period for the posting and removal of
political signs so long as it is at least 90 days prior to the
date of the election or vote to which the vote relates and at
least 15 days following the date of the election or vote.
5)Specifies that if the tenant posts signs in a manner that
violates a local ordinance, then the tenant shall be solely
responsible for that violation.
6)Specifies that any change in the terms of a tenancy that are
made to conform to the provisions of this bill shall not be
deemed a diminution of housing services, as specified.
FISCAL EFFECT : None
COMMENTS : According to the author, this bill continues
California's strong public policy preference for protecting
freedom of expression by granting to the tenants the same rights
that other Californians enjoy. Specifically, this bill would
generally prevent a landlord from prohibiting tenants from
posting political signs, so long as those signs do not exceed
six square feet in size and do not otherwise violate local,
state, or federal law, or the governing documents of a community
interest development.
The Legislature has already demonstrated this policy preference
recently in two other contexts. For example, in 2003 SB 116
(Dunn, et al.), Chapter 249, Statutes of 2003, provided that a
resident in a mobile home park could not be prohibited from
displaying a political campaign sign in the window or on the
side of a mobile home, or within the site on which the home is
located or installed, so long as such signs do not exceed six
square feet in size or are displayed for longer than the period
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of time between 90 days prior to an election and 15 days
following the election. That same year AB 1525 (Longville and
Steinberg), Chapter 774, Statutes of 2003, prohibited the
governing documents of a Community Interest Development (CID)
from preventing homeowners from posting noncommercial signs,
posters, flags, or banners on or in their individual properties,
except as required for the protection of public health or safety
or if the posting would violate a local, state, or federal law.
That legislation did, however, permit CID governing documents to
restrict the size of signs or posters to no more than nine
square feet, and flags or banners to no more than 15 square
feet. This bill is fully consistent with those prior measures.
In City of Ladue v. Gilleo, (1994) 512 U.S. 43, the United
States Supreme Court recognized that a person's ability to post
a sign on his or her own residence is a valuable right protected
by the First Amendment of the U.S. Constitution. In that case
the City of Ladue had enacted an ordinance generally prohibiting
residents from posting signs in front of their houses, with a
few specified exceptions. The Court found the ordinance to be
unconstitutional, stating:
Signs that react to a local happening or express a view on
a controversial issue both reflect and animate change in
the life of a community. Often placed on lawns or in
windows, residential signs play an important part in
political campaigns, during which they are displayed to
signal the resident's support for particular candidates,
parties, or causes. . . Residential signs are an unusually
cheap and convenient form of communication. Especially for
persons of modest means or limited mobility, a yard or
window sign may have no practical substitute. (City of
Ladue, 512 U.S. at 55-57.)
While City of Ladue held that posting campaign signs on one's
property is a constitutionally protected right, the First
Amendment only applies to government actors and therefore would
not necessarily prohibit a private landlord from prohibiting the
use of such signs. However, the California Supreme Court has
consistently held that the free speech provisions of the
California Constitution are much broader and more inclusive that
the First Amendment and, most important, the California
constitution protects free speech from both state and private
actors. (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658;
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Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899.)
Indeed, California's recently-retired Chief Justice, Ronald
George, strongly suggested in a concurring opinion that
prohibiting a tenant from posting political signs might well
violate the free speech provisions of the California
Constitution. In Golden Gateway Center v. Golden Gateway
Tenants Association (2001) 26 Cal.4th 1013, the court upheld the
right of a landlord to prohibit a tenants association from
distributing pamphlets under the doors of other tenants without
their express consent. In his concurring opinion, Justice
George agreed that the California Constitution did not protect
unsolicited distribution of pamphlets by a tenants association
in the interior hallways of a private apartment building, but he
wrote separately to stress that the state free speech clause
might still be enforceable against a private person who attempts
to "censor or undermine what might be viewed as another
individual's 'core' free speech rights." Chief Justice George
then gave the following example, which is quite fitting in light
of this bill:
Consider a private landlord who, under penalty of eviction,
precludes his or her tenants from displaying in the windows
of their apartments the campaign poster of a particular
political candidate supported by the tenant - or requires
the tenants to display in the windows of their homes a
poster of the candidate supported by the landlord . . .
If we were to hold . . . that Ýstate constitutional] free
speech claims require state action . . . we would
effectively remove any state constitutional obstacle to any
such action by a landlord . . . (Id. at 1042-1043,
emphasis added.)
Although the Chief Justice did not definitively state that a
tenant had such a right - since that was not the question before
the court - he cited numerous precedents for the proposition
that the California Constitution protects freedom of expression
from infringements by private as well as state actors, and he
made it very clear that he was very troubled by any construction
of the state constitutional provisions that would permit a
landlord to deny a tenant such a "core" free speech right as
posting political signs on one's residence.
Supporters of this bill argue that tenants will enjoy the
fundamental right to post reasonable political signs in the same
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manner that as homeowners, mobilehome residents, and CID
residents already enjoy. They argue that a person's right to
engage in this traditional political practice should not be
contingent based on whether or not one has the resources to hold
title to a home.
.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0002327