Jurisdictional Statement — Eugene Holden v. Roger Arnebergh, City Attorney, Los Angeles

‘TABLE OF AUTHORITIES CITED

Cases

-

A Quantity of Books v. Kansas, 378 U.S. 205,

84 S.Ct. 1237, 12 L.Ed.2d 809 ..........

Bantam Books v. Sullivan, 372 U.S. 58,

83 S.Ct. 631, 9 L.Ed.2d 584 EP eaenek:

Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556,

EM eke scayncdagedonens

46 L.Ed.92 ....... (este en

.. Dombrowski v. Pfister, 380 US. 479, =

: 85 S.Ct. 1116, 14 L.Ed.2d 222 ..........

~ Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441,

52 L.Ed. Ut See TTT Tee TT

Flack v. Municipal Court, 66 Cal. 2d 981,

59 Cal.Rptr. 872, 429 P.2d 192 ..........

Pinedinna*. Maryland, 380 U.S. 51,

85 S.Ct. 734, 13 L.Ed.2d 649 risteceeew ee

Giacco v. Pennsylvania, 382 U.S. 399, |

86 S.Ct. 518, 5 L.Ed.2d 447 0.0.0.2...

Ginsberg v. New York, 390 U.S. 629, |

88 S.Ct. 1274, 20 L.Ed.2d 195 ........ a

James Stewart & Co. v. Sandrakula,

309 U.S. 94; 60 S.Ct. 431, 84 L.Ed. 596,

eo ere area eer ne

Kingsley Books, Inc. v. Brown, 354 U.S. 436,

“TT S.Ct. 1325,,1 L.Ed.2d 1469... 2...

_ Lambert v. California, 355 U.S. 225,

78 S.Ct. 240, 2 L.Ed.2d 228 =. :.... 1...

4,13

or te

__.-~ TABLE OF AUTHORITIES CITED

Cases (cont’d) . ~ | ae Page

Marcus v. Property Search Warrants, 367 U.S:717, _

‘81 S.Ct. 1708, 6 L.Bd.24 1127, .......... 4,5

Metzger v. Pearcy, 393 F.2d 202 ieee y seks ee 5,14

Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434,

16 LBA.20464° 0.26... sees eee 4

N.A.A.CP. v. Button; 371 U.S. 41s, -

83 S.Ct. 1328, 9 L.Ed.2d 405. ............ 4

- New York ex rel. Bryant v’ Zimmerman, | |

/ 218 US. 63, 49 S.Ct. 61, 73 L.Ed. 184 .... .

Oklalioma Operating Company v. Love, :

252 USS. 331, 40 S.Ct, 338, 64 L.Ed. 596. 4

Paptin. Rowe, 391 U.S. 54,88S.Ct.1549, °°

are re |

Roth v. United States, 354 U.S. 476, : au

77 S.Ct. 1304, 1 L.Ed.2d 1498 ........ ee ote

Scott v. Donald, 165 U.S. 58, 170 S.Ct. 265,

“lt? eas Fee utes tues | 4

Sibron v. New York, 392 U.S. 40, _ |

88 S.Ct. 1889, 20 L.Ed.2d 917 ane ‘as ee

Speiser v. Randall, 357US.513, > - |

78 S.Ct. 1332, 2 L.Ed.2d 1460 .......... 5

United Public Works v. Mitchell, 330 U.S. 75,

67 S.Ct. 556, 91 L.Ed. 754 ..... PretTT Tre 4

| ae Amebergh, 59 Cal.2d 901, $

31 Cal.Rptr. 800 .........0..000, paGan : -§,14

TABLE OF AUTHORITIES CITED

- Statutes (United States) PS sie

United States Constitution , ee :

Piss AGROIIOEE «nsw eect pe cees cee

Fourth Amendment .......... oe eKtews .

Fourteenth Amendment ..:........ , 2, 4, 8, 9, 12,.14

I ook senses LS erecinnKes eee,

‘Statutes (California)

‘Code of Civil Procedure bee aie *.

—— + | | rrr rere ateeeacenes a

[ Geer ereee ve 3

Government Code 7

Sec. 951 (Stats. 1963, c..1715, p. 3383,

Pe | eee errr re 2, 4,5, 6, 7, 12, 13, 14

(Stats. 1968, c. 384, p.-, sec. ,' “4 5

"Penal Code | 3 —

Ss rere ee ee aahse 2,8

Sec. 1524 (Stats. 1957, c. 1884, p. 3289,

ie: Sener ae Ps

Sec. 1539 (Stats. 1851, ¢.29,p.285,

secs. 658, 659) cece y ks Se - 7

Sec. 1540 (Stats. 1851, c. 29, p. oe 2

00. GOD) onc cccceceecceces re mes

. Rules : °

’ Rules of the United States Supreme Court

8 a eee eee ree 1

. |: Soerverrrerre jee eiceebiaes es 1

: .

stich tact Na en Oat ct Fe A OR RE RR ALO RE a eR SAE RRS

INTHE be

_ SUPREME COURT OF THE UNITED STATES —

i

October Term, 1968

| ~~ No. |

"\ BUGENE HOLDEN, et al, -—

| | Plaintiffs and Appellants,

vs. E ay ae

ROGER ARNEBERGH, etc., ad.

“Real Parties in Interest

and Respondents. :

. JURISDICTIONAL STATEMENT

(Rule 13(2) and 15)

_ Rules Of The United States

Supreme Court

(a) This is a joint appeal taken from the order of the

California Supreme Court, dated October 17, 1968; denying

_ ahearing on the decision and ofder of the Court of Appeal |

" of the State of California, Second Appellate District, Division —

One, dated August 21, 1968, affirming the judgment of the

Superior Court below dismissing the subject action and assess- .

\ ing costs against plaintiffs and appellants. The order of the

=, a

Los Angeles Superior Court dismissing the action and assess- .

ing costs as aforesaid was dated March 20, 1967. .

As indicated above, the California Supreme. Court denied

a hearing in the instant case without opinion. The op:nion of

the Court of Appeal of the State of California, Second Appel-

late District; Division One, is reported at 265 A.C.A..103,

and 71 Cal.Rpti 401: The opinion of the Court of Appeal is

appended hereto as Exhibit “‘A.” The order of the California

Supreme Court, dated October 17, 1968, denying a hearing

is anual hereto as Exhibit “‘B.” 7 |

- (b) The jurisdiction of the Court is invoked on the

grounds, inter alia, that California Government Code section

951(b) has been sustained against a claim of unconstitution-

_ ality under the federal Constitution. Other questions raised

" also invoke federal constitutional questions and invoke the

jurisdiction of this Court. (See infra.)

(i) On November 14, 1966, appellants filed a

complaint for declaratory relief, injunction and conspiracy.

In essence, appellants alleged that they were engaged in the

‘business and occupation of selling books and periodicals in

the City and County. of Los Angeles and that various law ~

enforcement agencies in said city and county arrested them

on various dates for violations of California Penal Code sec-

- tion 311.2 (exhibiting and selling obscene material). Appel-

lants alleged that the arrests were made in a manner which

violated the First, Fourth and Fourteenth Amendments to

the United States Constitution. The primary basis for appel-

lants’ contention that the arrest procedures were constitution-

ally offensive was that the officers arrested appellants and

seized the allegedly obscene material without having a search

a,

or arrest warrant and without first subjecting the allegedly

obscene material to judicial scrutiny and review. Appellants’

action for declaratory relief was brought pursuant to the pro-

visions of California Code of Civil Procedure section 1060.

Appellants’ cause of action for an injunction was brought

pursuant to the provisions of California Code of Civil Pro-

cedure section 526 et seq.

" . ii) “On March 20, 1967, the Superior Court of

the State of California, for the County of Los Angeles,

entered an order dismissing appellants’ action and assessing

costs against appellants. On March 28, 1967, appellants

" filed their notice of appeal. On August 21, 1968, the Court

of Appeal of the State of California, Second Appellate |

District, Division One, affirmed the judgment and order of °

the Superior Court. A petition for rehearing was denied by

the Court of Appeal on September 3, 1968. On October ..17,

1968, the California Supreme Court denied a hearing on the

decision and order of the Court of Appeal. Appellants’

Notice of Appeal to this Court was filed in the Court of Appeal

of the State of California, Second Appellate District, on Nov-

ember 18,1968. |

(iii) The jurisdiction of this Court is conferred by

Title 28, United States Code section 1257.

' (iv) For case authority conferring jurisdiction upon

this Court, see: |

; 1. Appellate Jurisdiction: New York ex rel.

_ Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 73 L. Ed.

184, 187; James Stewart & Co. v. Sandrakula, 309 US. 94,

60 S.Ct. 431, 84 L.Ed. 596, 127 ALR 821; Lambert v. Calif-

ornia, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228.

2. Generally, as to subsidiary questions

SA SC EET TEN TLE IL RESTOR

:

SP EFI IEE NF eT ST

‘

= =

involving constitutional issues: Scott v. Donald, 165 U.S. 58,

170.S.Ct. 265, 41 L.Ed. 632.

3. California Government Code section 951,

by permitting costs to be recovered by a claimant i in aryamount

unrelated to the actual cost incurred by the claimant, in fact

imposes a penalty upon appellants for filing a lawsuit, and,

therefore, said section is unconstitutional in violation of Amend-

ment Fourteen to the United States Constitution: Giacco ».

_ Pennsylvania, 382 U.S. 399, 86 S.Ct. 5 18, 5 L.Ed.2d 447.

4. Aconstitutional issue is not rendered moot

‘ because of the repeal of the statute challenged, since appellants

herein will suffer adverse consequences under the statute as it

read prior to this appeal: Ginsberg v. New York, 390 U.S. 629,

663, Note 2, 88 S.Ct. 1274, 20 L.Ed.2d 195; Peyton ». Rowe,

391 US. 54, 88 S.Ct. 1549, 20.L.Ed.2d 426; Carafas v. LaVallee,

391 U.S. 234, 237-238, 88 S.Ct. 1556, 20 L.Ed.2d $54; Sibron

v. New York, 392 U.S. 40, 50-58, 88 S.Ct. 1889, 20 L.Ed.2d

917. | |

5. The requirement of a prior adversary pro-

ceeding: Cotting v. Goddard, 183 U.S. 79, 22 S.Ct. 30, 46 L.Ed.

92; Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714;

United Public Works v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91

L.Ed. 754; Oklahoma Operating Company v. Love, 252 US.

331, 40 S.Ct. 338, 64 L.Ed. 596;A Quantity of Books v. Kansas,

378 U.S. 205, 84 S.Ct. 1237, 12 L.Ed:2d ‘809; Freedman ». .

Maryland, 380 U.S. 51, 85.S.Ct. 734, 13 L.Ed.2d 649; Kingsley

Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d .

1469; Marcus v. Property Search Warrants, 367 U.S. 717, 81

S.Ct. 1708, 6 L.Ed.2d 1127;N.A.A.CP. v. Button, 371 U.S.

415, 83 S.Ct. 1328, 9 L.Ed.2d 405; Mills v. Alabama, 384 U.S.

214, 86 S.Ct. 1434, 16 L.Ed.2d 484; Dombrowski v. Pfister,

‘*

a a

380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 222.

| 6. Prior restraint: Speiser v. Randall, 357

U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460; Marcus v. Property

Search Warrants, supra; A Quantity of Books v. Kansas, supra;

Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L Ed.

‘2d 584; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304,

1 L.Ed.2d 1498.

7. The requirement that law enforcement

officers were required to have warrants prior to seizing alleg-

edly obscene material and arresting persons for selling and

exhibiting such material: Metzger v. Pearcy, 393 F.2d 202;

cf. Flack v. Municipal Court, 66 Cal.2d 981, 59 Cal-Rptr. 872,

429 ™ 2d 192.

8. Declaratory relief is the proper ‘esate to

utilize in order to obtain a judicial declaration concerning the

obscenity ie grant of specific books, magazines and

photographs: Zeitlin v. Arnebergh, 59 Cal.2d 901, 31 Cal.

Rptr. 800. ‘a

(v) California Government Code section 951 is

found in Stats. 1963, c. 1715, p. 3383, sec. 2, and reads as

follows:!

*“(a) At any time after the filing of the com-

plaint in any action against a public employee or

- former public employee, if a public entity under-

takes to provide for the defense of the action, the

attorney for the public employee may file and serve

@ demand for a written undertaking on the part of

i. Sumeaiitiitiniies 951, as quoted in the jurisdictional statement, was

Scent act spats In 1968 Gat 1508 © 30900 fe

assessing ts. In 1968 (Stats. 1968, c. 384, p.-, sec. 2) the

ype by pet en ery that portion of section 951 which authorized

the awarding siceiaciaatialiaiciecieaaraeai nae

.

LEARN LITO LEMON LER NLS AE AF

RDN NT

= =

each plaintiff as security for the allowable costs

which may be awarded against such plaintiff. The

undertaking shall te in the amount of one hundred -

dollars ($100), or such greater sum as the court shall

fix upon good cause shown, with at least two suffi-

cient sureties, to be approved by the court. Unless

’ the plaintiff files such undertaking within 20 days

after service of the demand therefor, his action shall -

be dismissed. :

~- “(b) If judgment is rendered for the public

employee or former public employee in any action

’ where a public entity is not a party to the action

but undertakes te provide fer the defense of the —

- action, allowable costs incurred in ‘defending the

action, but in no event less than fifty dollars ($50),

shall be awarded against each plaintiff. |

“(c) This section does not apply to an action

commenced in small claims court.”

: California Penal Code section 1524 is found in

Stats. 1957, c. 1884, p. 3289, sec: 1, and reads as follows:

“A search warrant may be issued upon any of

- the following grounds: |

‘1. When the property was stolen or embezzled.

“2. When the property or things were used as

the means of committing a felony. '

“3. When the property or things are in the pos-

session of any person with the intent to use it as a

means.of committing a public offense, or in the pos-

session of another to whom he may have delivered it

for the purpose of concealing it or preventing its being

_ discovered. Be

_ section tead prior to its amendment in in 1967) i is found in Stats. |

pe,

“4. When the property or things to be seized

consist of any item or constitutes any evidence

which tends to show a felony has been committed,

or tends to show that a particular person has com-

mitted a felony. | 3

“The property or things described in this sec-

tion may be taken on the warrant from any place,

or from any person in whose possession it may be.”

California Penal Code section 1539 (as said-

1851, c. 29, p. 285, secs. 658, 659, and reads as follows:

“If the grounds on which the warrant was

issued be controverted, he must proceed to take

testimony in relation thereto, and the testimony

of each witness must be reduced to writing and |

authenticated in the manner prescribed in Section

869.” \

California Penal Code section 1540 is found in

— Stats. 1851, c. 29, p. 285, sec. 660, and reads as follows:

(c)

“If it appears that the property taken isnot _

the-same as that described in the warrant, or that

' there is no probable cause for believing the existence

of the grounds on which the warrant was issued, the

magistrate must cause it to be restored to the person

from whom it was taken.” - :

The questions presented on appeal are as follows:

(i) Whether California Government Code section

951, by permitting costs to be recovered by a public entity

who prevails in a lawsuit in an amount unrelated to the actual

costs incurred by such public entity in said lawsuit, is unconsti-

:

ere

Cr a oi

lis”

tutional in violation of Amendment Fourteen to the United

States Constitution, in that said seciton imposes a-penalty

upon-a private person for filing a lawsuit against the public

entity (or an employee of the public entity for whom the

latter provides a defense)?.

(ii) Whether the court below properly sustained

demurrers to the first cause of action of appellants’ second

amended complaint, thereby ruling that appellants’ allegations ,

that the law enforcement, agencies involved in this case were

‘required to have warrants prior to seizing allegedly obscene

material and arresting persons for selling and exhibiting such

_ material were invalid and incorrect?

(iii) Whether the court below properly sustained

demurrers to the second cause of action of. appellants’ second

amended complaint, thereby ruling that appellants were not

entitled to a declaratory judgment on the issue of whether —

certain specific books, magazines and photographs attached to

appellants’ second amended complaint were obscene or non-

obscene?

(d) Statement of the case:

On November 14, 1966, appellants filed a Complaint

For Declaratory Relief, Injunction and Conspiracy (CT 1-15).?

In essence,‘appellants alleged that they were engagéd in the busi-

ness and occupation of selling books and periodicals in the City

and County of Los Angeles and that various law enforcement

agencies in said city and county arrested them on various dates

for violations of California ee Code eine 311.2 (exhibiting |

?

As used herein, CT refers to the Clerk’s Transcri pt on Appeal, and ST refers

to ree ni os to the Supplemental inoua filed by appellants :

on .

wails

and selling choos material). Appellants alleged that their

arrests were made i in a manner which violated the First, Fourth

* and Fourteenth Amendments to the United States Constitution.

_The primary basis for appellants’ contention that the arrest

procedures were constitutionally. offensive was that the officers

arrested appellants and seized thegllegedly obscene material

without having a search or arrest warrant and without first

subjecting the allegedly obscene material to judicial scrutiny

and review. - .

On November 21, 1966, appellants filed a Notice of

_ Motion-for Preliminary Injunction, Declaration and Points -

and Authorities in Support Thereof (CT 16-36). On December

2, 1966, Harold W. Kennedy, County Counsel of the County of-

Los Angeles, filed a Demurrer to Complaint for Declaratory

Judgment, Injunction and Conspiracy and Points and Auther-

‘ities in Support Thereof (CT 37-40). One ground of the

demurrer was that the complaint, failed to state a cause of

action. sia “

On December 5; 1966, Roger Arnebergh, City Attorney

for the City of Los Angeles, filed Points and Authorities and °

Declarations of Roger Arnebergh, City Attorney, Thad F.

Brown, Chief of Police, and Edward-L. Davenport in Opposi-

tion to Plaintiffs’ Request For Preliminary Injunction (CT 41-

51). Attached to this document was the “Decision, Findings

of Fact and Conclusions of Law” in United States District

Court Case No. 66-784-AAH (CT 54-74).

On December 23, 1966, appellants filed their First

Amended Complaint for Declaratory Judgment, Injunction

and Conspiracy (CT 82-97). Although the first cause of action’

of the first amended complaint was somewhat revised, the basic

alleged constitutional violations remained intact. Additionally,

OVP TET

te

_10-

appellants set. forth a second cause of action in which they

requested a declaration as to whether a number of specifically |

described books, magazines and photographs (paragraph 2,

CT 91-92): were or were not obscene.

On January 4, 1967, Harold W. Kennedy, County Counsel

for the County of Los Angeles, filed a Demurrer To Amended

Complaint for Declaratory Judgment, Injunction and Con-

spiracy and Point and Authorities in Support Thereof (CT 98-

99). Again; one ground for demurrer was that the complaint

- failed to state a cause of action. |

On January 18, 1967, Thomas C. ak Attorney dian

al for the ‘State of California, filed a Demurrer to Amended »

Complaint for Declaratory Judgment, Injunction and Conspir-

acy and Points and Authorities in Support Thereof (CT 100--

101). The basis of this demurrer was that the complaint failed

to state a cause of action. .

On January 25, 1967, Roger Arnebergh, City Attorney for 3

the City of Los Angeles; filed a document entitled ‘““Demurrer

of Real Party in Interest Roger Arnebergh, City Attorney, and

. Thad F. Brown, Chief of Police, to Plaintiffs’ First Amended

Complaint” (CT 102-104). wi ‘

On February 27, 1967, appellants filed their Second

Amended Complaint for Declaratory Relief and Injunction~

(CT 105-117). Although there was again some revision of the

complaint, the alleged constitutional. -violations remained

intact and a declaration as to whether the specifically described

-books, magazines and photographs were or were not obscene |

was again requested.

On March 6, 1967, Evelle J.. Younger, District Attorney

for the County of Los Angeles, and Peter J. Pitchess, Sheriff

of the County of Los Angeles, filed a Demurrer of County

~)

Officers to Second Amended Complaint and Points and Auth-

orities (CT 118-119).

On March 8, 1967, Roger Arnebergh, City Attorney for

the City of Los Angeles, filed a Demurrer of Real Parties j in |

- Interest Roger Arnebergh, City Attorney, and Thad F. Brown,

Chief of Police, to Plaintiffs’ Second — Complaint

(CT 120-122).

On March 10, 1967, Thomas C. Lynch, Attorney Gener-

al for the State of California, filed a Demurrer to Amended

Complaint for Declaratory Judgment, Injunction and Conspir-

acy, and Points and Authorities in Support Thereof (CT 123- '

124). .

On March 20, 1967, the Superior Court of the State of

California, for the County. of Los Angeles, the Honorable |

Richard L. Wells, Judge Presiding, entered the following order:

“Good cause appearing therefor, the above-

_ entitled action is hereby dismissed under the pro-

visions of section 581(3) of the Code of Civil Pro-

cedure as to defendants Evelle J. Younger, District

Attorney. for the County of Los Angeles; Peter J.

Pitchess, Sheriff of the County of Los Angeles;

Roger Arnebergh, City Attorney for the Cityof

Los Angeles; Thad Brown, Chief of Police for the

City of Los Angeles; and Thomas J. Lynch, Attor-

ney General of the State of California.

“It is further ordered that the above named

defendants have and recover — against the

plaintiff in the sum of $

On March 28, 1967, appellants filed their Notice of Appeal .

and Designation of Record (CT 126-127).

On March 30, 1967, Evelle J. Younger, District Attorney

ETS

° *-

ie Ss

for tht County of Los Angeles, and Peter J. Pitchess, Sheriff

of the County of Los Angeles, filed a Memorandum of Costs

and Disbursements, each claiming costs of $50.00 against each

appellant pursuant to the provisions of Government Code sec-

tion 951 (ST 1-4). “Points and Authorities in Support of

. Defendant’s Motion of Costs Under Section 951 Government

-Code” were also filed (ST 5-7). |

On March 30, 1967, appellants filed a Notice of Motion ~

to Strike Memorandum of Costs and Disbursements Or, In

The Alternative, Reducing the Costs Recoverable by Real

_ Parties in Interest to the Actual Amount of Costs Incurred

~ By Said Parties; Points and Authorities in Support Tiereof

(ST 8-13). This motion was denied on April 13, 1967 (ST 14). |

On April 17, 1967, appellants filed a Supplemental Notice

“ Appeal and Designation of Record (ST 15- 16):

(e) The primary federal question presented in this appeal |

concerns the claim by appellants that California Government

Code section 951 is unconstitutional. It is respectfully sub-

mitted that Government Code section 951, by permitting costs

to be recovered by a claimant in an amount unrelated to the

actual costs incurred by the governmental entity claimant, in

fact*imposes a penalty upon appellants for filing their lawsuit,

in violation of Amendment Fourteen to the United States Con-

stitution. In effect, Government Code section 951 permits

recovery of $50.00 in costs against each appellant, irrespective ©

_ of the actual amount of costs incurred by the claimant. The |

provisions of section 951 have the practical effect of imposing

a penalty upon appellants for filing the lawsuit against the

public employee, since the governmental entity employing the

public employee i is entitled to recover costs in excess of the sum

4 ae . : -

o

-_

- expended by it. It is submitted, therefore, Gat section 951

is constitutionally violative.

- It is worthy to note that the code section pursuant to

which costs were assessed against appellants in this case, to

wit, California Government Code section 951, was, as indicated

above, amended in.1968. The effect of the amendment was to

- delete that portion of section 951 which authorized the award-

ing of costs in cases such as the instant one. In spite of the

fact that the section has been amended as indicated, the issue

herein raised by: appellants has not been rendered moot, for

the reason that if the cost assessment provision is upheld, appel-

‘dants wail! he eauniwed ite pay’ the aot asesseu} sine ith assess: —

ment occurred prior to the amendment of the section. It is

respectfully submitted that a constitutional i issue is not render-

ed moot because of the repeal of the statute challenged if the

party challenging the statute will suffer adverse consequences

under the statute as it read prior to the appeal. Cf. Ginsberg

vp. New York, supra; Peyton v. Rowe, supra; Carafas ». LaVallee,

supra; -Sibron v..New York, supra. .

As indicated above, the trial court sustained demurrers to

the first cause of action of appellants’ second amended complaint A

on the ground. that the complaint failed to state a cause of action.

The appellate court affirmed the order of the trial court. It is

submitted that both courts vera in making their reapactive 4 deter-

minations. ~— °

Appellants alleged in their sontithaied that the law enforce- _

ment agencies were required to have warrants prior to seizing

allegedly obscene material and arresting persons for selling and

exhibiting such materials. The court, in sustaining the demurrers

without leave to amend and dismissing the action, rejected appel-

lants’ al'egations. It is respectfully submitted that the court

Bet Red

=_Y eS

errec, in that law enforcement officers are required to obtain a

warrant prior to arresting a person and seizing allegedly obscene

material. Metzger v. Pearcy, supra; Flack v. Municipal Court,

supra. Accordingly, the allegations contained in appellants’ first

cause of action stated a cause of action.

The court also sustained demurregs without leave‘to amend

_ to the second cause of action of appellants’ second amended com-

plaint, wherein appellants sought a judicial determination as to

whether certain specific books, magazines and photographs were

- obscene. It is respectfully submitted that the court erred in so

holding, since it is well established that declaratory relief is the

proper remedy to utilize in order to obtain such a judicial deter-

mination. Zeitlin v. Arnebergh, supra.

(f) Appended hereto as Exhibit “B” is a copy of the order

appealed from; the opinion of the Court of — is appended

as | Exhibit _ |

CONCLUSION

3 Mr te

It is respectfully submitted that Government Code section |

951, insofar as it permits recovery of $50.00 in costs against each -

appellant irrespective of the actual amount of costs incurred by

the individual claimant, in fact i imposes a penalty upon appellants

for filing their lawsuit and is, therefore, violative of the-Fourteenth

Amendment to the United States Constitution. In addition, it is

submitted that the court below erred in sustaining demurrers to

the first and ‘second causes of action of appellants’ second amend-

ed complaint (in effect dismissing said complaint), for the reasons

hereinabove set forth. i

| Respectfully submitted,

BURTON MARKS

A ttorney for Appellants

APPENDIX °

OPINION OF THE COURT BELOW

©

—<

EXHIBIT “A”

COURT OF APPEAL OF THE STATE OF CALIFORNIA

- SECOND APPELLATE DISTRICT

EUGENE HOLDEN, JOE BRANDON,

JOHN ROSAKOS, NATHAN DeLUCA,

JOSEPH GROSS, JOSEPH RICHARD —

TOUART, HAROLD HOLDEN, MARK S.

HOLDEN, BERNARD SWEENY, WILLIAM.

BLAIR MILES and HENRY BRANDON,

Plaintiffs and Appellants.

vs.

ROGER ARNEBERGH, City Attorney for

the City of Los Angeles; EVELLE J.

YOUNGER, District Attorney for the City

of Los Angeles; THAD BROWN, Chief of

Police of the City of Los Angeles; PETER

J. PITCHESS, Sheriff of the County of Los

Angeles and THOMAS C. LYNCH, Attorney

General of the State of California, .

Real Parties in Interest

and Respondents. |

™~

r

Civ. 32155, 32197 .

“Court of Appeal, Second District

_ Division 1

August 21, 1968

LILLIE, Associate Justice.

~ Having been arrested and charged with violating section

311.2, Penal Code (exhibiting and selling obscene material),

Exhibit “A” x

plaintiffs by their second amended complaint, first cause of

- action, sought a declaratory judgment that the statute as

applied by the real parties in interest deprives them of rights

guaranteed by the First, Fourth and Fourteenth Amendments,

United States Constitution, and that real parties be required

to set up a pre-arrest censorship system by which they (plain-

tiffs) could submit the material in question for’a determination —

as to its asserted obscenity prior to seizure and prior to their

arrest; and in their second cause of action, a further declara- |

tion that. the various materials (books, magazines and photos)

are not obscene as a matter of law and, therefore, not the

subject of criminal prosecution, and injunctive relief against _

further prosecution for selling and exhibiting such books and

photos. Demurrers having been sustained, plaintiffs appeal

(No. 32155) from order dismissing the action (Code Civ. Proc.

sec. 581(3)). They also appeal (No. 32197) from order deny-

ing their motion to strike cost bill of certain real parties fixed

in the sum of $550 pursuant to section 951(b), Government

Code.!

The first cause of action purports to set forth the exist-

ence of a controversy between plaintiffs and the several real ©

parties. Plaintiffs allege among other things? that they are

-in the book-selling business; that in September 1966 all were

arrested for violating section 311.2, Penal Code, and one month

_ later certain of them were again arrested; that prior to arrest

and seizure of any items offered for sale by them, real parties

1. “If judgment is rendered for the public employee * * * in any action where

a public entity is not a to the action but undertakes to provide for the

defense of the action, allowable costs incurred in defending the action, but in

no event less than fifty dollars ($50), shall be awarded against each plaintiff.”

2. In many cts they are yr after the pleading in Schackman v.

Arnebergh (D.C. 1966) 258 F.Supp. 983, wherein the court denied petitioners

any relief and dismissed the action as to all law enforcement officers concerned.

Exhibit “A”. —3— | :

were required as a matter of procedural due process to give

notice and warning that such items have either been declared

‘obscene within the meaning of section 311, Penal Code, by

certain sections or divisions set up in the offices of the several

real parties for such determinations, or submitted for judicial

_ scrutiny by an appropriate court; that instead, real parties

‘tesort to the following procedures: A policeman or deputy.

sheriff enters plaintiffs’ place of business, buys a book he

thinks is obscene,-takes the item thus purchased either toa |

deputy city attorney or deputy district aftorney who, with or

without consulting another deputy, thereupon determines .

whether the material is “prosecutable.” A complaint is then

drawn up for issuance by the applicable municipal court without . :

first submitting the material to the magistrate; in the alternative,

the policeman or deputy sheriff is directed to return to plain-

tiffs’ place of business and make an arrest, without a warrant,

upon the premise that the officer can then reasonably believe:

that a misdemeanor is being committed in his presence. An

arrest is then made, either without a warrant or pursuant to a

warrant issued by the municipal court; thereafter a search of

the premises is made, and items considered inctiminating are

seized. Since the above procedures were applied to them,

plaintiffs contend, and real parties deny, that section 311.2,

Penal Code, as thus enforced violates their rights guaranteed

by the First (freedom of speech), Fourth (freedom from un-

reasonable searches and seizures) and Fourteenth (equal protec-

tion of the laws) Amendments. .

The second cause of action makes reference to the arrests

of plaintiffs and appropriately identifies the various items

charged to be obscene; it then alleges that a dispute has arisen

as to the obscenity of these items and as to their (plaintiffs’)

Dd

Re Cee a EE ET ROS

Exhibit “A” - | is:

_ right to protection from prosecution under the First Amend-

’ ment. It is further alleged that a judicial determination should

be made of their nonobscenity, after viewing the several films

and reading the subject books, following which an injunction

- should issue barring further prosecution of plaintiffs by the

teal parties for exhibiting and selling said materials.

. Citing Flack v. Municipal Court, 66 Cal.2d 981, 59 Cal.

Rptr. 872, 429 P.2d 192, it is first contended that plaintiffs’

first cause of action sufficiently stated a cause of action for

the relief therein sought insofar as it-atteged that the concern- -

ed officers were required to obtain warrants prior to any

arrests and seizures. As to the second cause of action, appel-

lants, relying on Zeitlin v. Arnebergh, 59 Cal.2d 901, 31 Cal.

Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707, claim that the

+ demurrer should not have been sustained because it is now

settled that an action for declaratory judgment will lie to

determine the alleged obscenity of a book or other material?

under the applicable statutes. Based on the following, it is our.

view that here there is substance to neither contention.

In Flack petitioners were arrested by police officers after -

the latter had viewed a certain film exhibited at a theater owned

by Flack who employed the other petitioner (Stephenson);

contemporaneous with the arrests, the film was seized. Neither

search nor arrest warrants had previously-been secured. The .

next day each was charged with violating seciton 311 .2, to

which count of the complaint a demurrer was thereafter over-

ruled. Motions to suppress and for return of the film were sub-

sequently denied, after which petitioners sought mandamus

3. Films may also be included within the free h and free press guaranty

of the First and Fourteenth Amendments: (Burstyn, Inc. v. Wilson, 343 U.S.

495, 72 S.Ct. 777, 96 L.Ed. 1098.) .

requiring return of the film: It was concluded that “the pro- es

cedures employed in the present matter do violence to those

[First Amendment] constitutional protections,” (66 Cal.2d p.

983, 59 Cal.Rptr. p. 873, 429 P.2d p. 193) and the trial court

was accordingly directed to issue the writ as prayed. What |

were the procedures employed in Flack? The arrests and

seizures were made without a search warrant, although the

film had been exhibited at the same public theater for two

weeks, and they were effected by “police officers in the field” .

who made an ad hoc determination of obscenity contrary to

the following caveat found in the opinion: “Within the

precinct of the First Amendment, only the requirement that

a search warrant be obtained prior to any search or seizure

) assures a free society that the sensitive determination of

obscenity will be made judicially and not ad hoc by police:

officers in the field.” (P. 992, 59 Cal.Rptr. p. 879, 429 P.2d

p. 199) Although disapproving contrary conclusions on this

point found in cases cited in the footnote (fn. 12), in a sub-

sequent footnote (fn. 13) the court expressly declined under

the facts there presented to “ascertain whether it is feasible

for the magistrate to examine the allegedly offending film or

hold an adversary proceeding prior to issuing a warrant * * *.”

(P. 993, 59 Cal.Rptr. 880, 429 P.2d p. 200.)

More pertinent to the problem at bar is the following from

Aday v. Municipal Court, 210 Cal.App.2d 229, 26 Cal. Rptr.

576 (which case is cited with approval in Flack): “As applied

to. the facts in hand, the Marcus ruling‘ requires a holding that

the seizure must be followed expeditiously with a court hearing,

if desired by the owners, and a prompt determination of whether

Exhibit “A” ae ee |

a

CRIA VL PARI OTD AG APO AINE

Lane ENE Dan, PARE

SPN OMEN CoM ET MLL NEI,

.

OT Pea ere

4. - Marcus v. Sent teiaattiiaaite, 367 U.S. 71, 81 S.Ct. 1708,

6 L.Ed.2d 1127.

BR AAR A td NICAL i Kt hae we wow

Exhibit “A” 7" 6—

‘the property or some specified portion of it shall be returned

to the persons from whom seized.” (P. 248, 26 Cal.Rptr. p.

_ 588.) Under Cakifornia law such relief is made available to

persons thus aggrieved by the provisions of sections 1539 and

1540, Penal Code, the purpose of which “‘is to provide one

whose property is seized with a speedy remedy in a readily

__ accessible court, * * *” (Aday v. Superior Court, 55 Cal.2d

789, 800, 13 Cal.Rptr. 415, 422, 362 P.2d 47, 54); too, itis —

immaterial whether the property was illegally seized by means

-of an invalid warrant or without any warrant at all. (People v.

Gershenhorn, 225 Cal.App.2d 122, 37 Cal.Rptr. 176.) In the

present case, as disclosed by their complaint, although plain-

. tiffs were first arrested (and their property seized) on Septem-

ber 21, 1966, the instant action was not commenced until

November 14 of that year, and the pleading is completely

silent respecting resort to the available procedures, referred |

to above, which could have furnished redress in the manner

provided by the applicable statutes; and even if the motion

to return and/or suppress had been denied, such order could

have been more expeditiously reviewed (as was done in Flack)

by a proceeding i in mandamus to compel the result desired.

{1, 2] Having sought declaratory relief, plaintiffs are _

now confronted with the recognized principle that the granting

For such relief rests in the sound discretion of the court. (People

v. Ray, 181 Cal.App.2d 64, 67, 5 Cal.Rptr. 113) Ray holds —

(citing authority) that the court does not abuse its discretion

in refusing to entertain that type of action where otherwise

plaintiff has a speedy and adequate remedy. Both Flack and

the two Aday cases have described the procedures to which

plaintiffs have not resorted as “speedy” and “‘expeditious”

means of redress; under the circumstances, we do not believe

%

/

Exhibit “A” —7—

that plaintiffs have madé any showing that the present pro-

ceeding should be considered an exception to the’general rule

above stated. .

[3,4] We apply the same rationale to plaintiffs’ sitet

contention that under the ruling in Zeitlin v. Arnebergh, 59

Cal.2d 901, 31 Cal.Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707,

they are entitled under the second cause of action as pleaded

to a judicial determination respecting the obscenity of the *

items seized and to an injunction prohibiting.further prosecu-

tion of the criminal proceedings therein referred to. Thus,

insofar as that course of action seeks a declaratory judgment,

a timely (and successful) motion to suppress might well have

removed the several materials from judicial consideration,

thus ending the People’s case. With regard to injunctive as

well as declaratory relief, real parties have cited Manchel v.

County of Los Angeles, 245 Cal. App. 2d 501, 54 Cal.Rptr. 53,

which did not, as here, involve a challenge to the unconstitu-

tional tintin of a legislative enactment. With respect to

the issuance of an injunction, the correct rule is stated in

Bueneman y. City of Santa Barbara, 8 Cal.2d 405, 407-408,

65 P.2d 884, 886, 109 A.L.R. 895: “ ‘It is settled that where

a penal statute causes irreparable damage to property rights,

the injured party may attack its constitutionality by an action

to enjoin its enforcement. * * * Hence, if the ordinance is

unconstitutional in its application to these plaintiffs, they are

entitled to the decree which they seek.’ ” However, real parties

correctly contend that the same principle governs actions for

injunctive relief as is applicable in proceedings for a declaratory

judgment, namely, there must be some showing of the inade- .

quacy of a remedy at law affording proper grounds for the

equitable relief sought. ‘In North Side etc. Assn.'v. Hillside etc.

Se ae ees a ee

ai a WOR i hie A yea ee LD Den Ant dt Dee es

es

Co

Exhibit “A” —

Park, 70 Cal.App.24 609, 161 P.2d 618, affirming a judgment

on the pleadings, this court declared: ““* * * it is well recogniz-

ed doctrine that where a party has an adequate remedy at law

he may not resort to a court of ‘equity for injunctive relief [cita-

tions) . ”(P..615, 161 P.2d p. 621.) ;

‘(5] In the second appeal (No. 32197), plaintiffs challenge

the order below refusing to strike the cost bill of certain real

parties the ground that the subject statute (fn. 1, supra) |

in. Peony imposes a penalty upon them for filing their

lawsuit and, therefore, is violative of the Fourteenth Amend-

- ment. They rely on Giaccio »v. State of Pennsylvania, 382 U.S.

_ 399, 86 S.Ct. 518, 15 L:Ed.2d 447, wherein, upon the ground

of vagueness, the court struck down a statute providing that in

__Acriminal case thé jury could decide, upon defendant’s acquittal,

e€ proportionate costs (if any) to be borne by him. The trial

urt had instructed the jury that it could place costs of prose-

cution on defendant, even if acquitted of the charge, if it found

that he had been guilty of “ ‘misconduct of some kind as a

result of which he should be required to pay:some penalty short

of conviction * * *°” (p. 404, 86 S.Ct. p. 521.) That the

decision was based upon the lack of any ascertainable standards

| definitive of the type of misconduct i in suit, there canbeno

doubt. The California statute, of course, is otherwise, providing

that costs of not less than $50 per plaintiff be borne in the event

his suit is not successful. Further, it has been held that former

section 647, Government Code, similar in part to the statute

under consideration, was not open to the constitutional chal-

lenge here asserted (Reid v. State ex rel. Dept. of Public Works,

_ Division of Highways, 193 Cal. App.2d 799, 806, 14 Cal.Rptr.

$97); too, since Reid was one for an injunction, it also answers.

. the additional point that the instant lawsuit, being equitable in |

Exhibit “A” ——

nature, is not an “action” within the meaning of section 951.

The orders are affirmed.

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WOOD, P.J., and FOURT, J., concur.

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EXHIBIT “B”

(2d Civ 32155, 32197, Div 1)

"HOLDEN, et al. . ARNEBERGH, CITY ATTORNEY, etc., et al.

[265 A.C.A. 103.] Bae :

ONPETITIONFORHEARING ~——«Cws™ :

ORDER

Appellants’ petition for hearing denied. Peters, J., is of

the opinion that tlie petition should be granted.

DATED: October 17, 1968.

PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA | )

) ss.

County of Los Angeles

I, the undersigned, say: I am and was at all times herein mentioned, a citizen of the

United States and employed in the County of Los Angeles, over the age of eighteen

years and not a party to the within action’ or proceeding; that .

My business address is 215 West Fifth Street, Los Angeles, California 90013, that on

‘JANUARY , 1969, I served the within JURISDICTIONAL STATEMENT (Holden .

v. Arnebergh) on the following named parties by depositing a copy thereof, enclosed

in a sealed envelope with postage thereon fully prepaid, in the United States Post

Office in the City of Los Angeles, California, addressed to said parties at the addresses

as follows:

COUNTY CLERK, COUNTY OF LOS ANGELES

111 NORTH HILL STREET.

LOS ANGELES, CALIFORNIA

FOR: HONORABLE RICHARD L. Wells, Judge

ATTORNEY GENERAL, STATE OF CALIFORNIA, .

600 STATE BUILDING

LOS ANGELES, CALIFORNIA 90012

DISTRICT ATTORNEY, COUNTY OF LOS ANGELES

600 HALL OF JUSTICE .

LOS ANGELES, CALIFORNIA 90012

COUNTY COUNSEL, COUNTY OF LOS ANGELES

650 HALL OF ADMINISTRATION

LOS ANGELES, CALIFORNIA 90012

| . CITY ATTORNEY, CITY OF LOS ANGELES

200 NORTH SPRING STREET, RM. 2100

“ LOS ANGELES, CALIFORNIA

I swear under penalty of perjury that the foregoing is true and correct.

Executed on JANUARY , 1969, at Los Angeles, California.

D. A. Standefer

Orig. & RFtopies via Air Expressto

CLERK, UNITED STATES SUPREME COURT

1 FIRST STREET, N.E., WASHINGTON, D.C.

Subscribed and sworn to before me

this day of January, 1969.

Notary Public in and for the

State of California. f | ‘ ~~

EE ELIT I I a a OER TY

Bi I nes bie lS | Raia it