PEOPLE CLANCY v. BOOK STORE (1984)

OPINION

In this petition for writ of mandate, petitioners, the State of California on relation of the City Attorney of Corona and the City of Corona (city), appeal from an order granting the motion of real parties in interest, the “Book Store,” Helen E. Ebel, Thomas Charles Ebel and Eugene Van Zee, to quash a subpoena duces tecum in an action to abate a public nuisance.

The essential facts are not in dispute.   On June 15, 1983, the city adopted an ordinance setting forth procedures for the abatement of certain types of public nuisances in the city.   The ordinance defined as a public nuisance:  “Any and every place of business in the City ․ in which obscene publications constitute all of the stock in trade, or a principal part thereof ․”   Two weeks earlier, when the ordinance was originally introduced, the city had retained the services of James J. Clancy, a private attorney, to represent the city in any lawsuits brought pursuant to the aforesaid public nuisance ordinance.

Petitioners, represented by Mr. Clancy, shortly thereafter filed a complaint against the real parties in interest for abatement of a public nuisance, declaratory judgment and an injunction.   Petitioners dispatched several police officers to the “Book Store” for the purpose of photographing the literature on sale in the retail section of the store and the motion picture films on exhibit in the “arcade” section.   The officers photographed some 262 different magazines and books.   The photographs together with a declaration by the police officer in charge of the surveillance operation were filed with the respondent superior court in support of petitioners' motion for a preliminary injunction.

Shortly thereafter, petitioners served a subpoena duces tecum upon real parties in interest demanding the production of the aforesaid 262 publications as evidence in support of a preliminary injunction that obscene materials were being offered for sale.   Although the subpoena was originally served upon Timothy Groover, the clerk in charge of the store, the parties by stipulation have deemed the subpoena to have been served upon real party in interest Thomas E. Ebel.

Real parties in interest moved to quash the subpoena duces tecum and to disqualify petitioners' counsel, Mr. Clancy.   After a hearing on the motions, the trial court permitted petitioners to amend the complaint by deleting Mr. Clancy's name as relator and substituting “the City Attorney of Corona.”   The trial court granted the motion to quash the subpoena duces tecum on the grounds that the materials requested were privileged under the Fifth Amendment.   Petitioners then filed this action seeking to overturn the order of the trial court on the grounds that the materials were not protected by the Fifth Amendment privilege against self-incrimination.   We issued an alternative writ of mandate.   After further briefing and oral argument, we have determined to issue a peremptory writ.

DISCUSSION

Before turning to the substantive merits of the petition, we must first address certain procedural issues.   Real parties assert several “affirmative defenses” to the petition challenging the qualifications of petitioner's counsel, James J. Clancy.

 First, real parties contend that the petition should be dismissed because the underlying public nuisance action was brought on the relation of Mr. Clancy rather than Mr. Dallas Holmes, the City Attorney of Corona.  Code of Civil Procedure section 731 provides in part:  “A civil action may be brought in the name of the People of the State of California to abate a public nuisance ․ by the district attorney of any county in which such nuisance exists, or by the city attorney of any town or city in which such nuisance exists ․ and such district attorney or city attorney ․ must bring such action whenever directed by the board of supervisors of such county or whenever directed by the legislative authority of such town or city.”

The record in the case sub judice reveals that the trial court permitted petitioners to amend the complaint by substituting for “James J. Clancy” as relator “the City Attorney of Corona.”   Mr. Clancy had earlier signed a contract with the city agreeing to conduct the lawsuit “as an independent contractor and not an officer or employee of [the] City.”   Prior to the substitution, the city adopted a resolution authorizing Mr. Clancy to conduct the lawsuit in the name of the “City of Corona and People of the State of California, on the relation of the City Attorney of Corona, California ․”

Notwithstanding the amendment, real parties in interest appear to argue that Code of Civil Procedure section 731 requires that the lawsuit be conducted by the city attorney in deed as well as in name.   However, real parties cite no authority and offer no persuasive rationale in support of this proposition.   Hence we conclude that petitioners have fully complied with the provisions of Code of Civil Procedure section 731 by bringing the lawsuit on the relation of the “City Attorney of Corona” pursuant to the express authorization of the City Council of Corona.

 Real parties next contend that the petition should be dismissed because of a contingency fee arrangement between the city and Mr. Clancy.¹  They argue that the underlying action to abate a public nuisance is analogous to a criminal prosecution, and that like a public prosecutor Mr. Clancy's primary goal should be to obtain justice, not victory.   The contingency fee arrangement, it is argued, creates a conflict between Mr. Clancy's private financial interest and the public interest which he represents.

We do not find the analogue to be persuasive.   Obviously, a public prosecutor must be absolutely neutral.   The life or liberty of an accused hangs in the balance.   The state's object is not to win or lose, but to ascertain the truth and to do justice.   However, in neither their Answer to the Petition nor their responses at oral argument have real parties identified any equally compelling interests at stake in this civil action to abate a public nuisance which would require the same absolute neutrality on the part of the city's attorney.

The only relevant noncriminal case cited by real parties, City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 135 Cal.Rptr. 647, 558 P.2d 545, involved an eminent domain action.   In holding that the city attorney had acted improperly in withholding certain evidence concerning the value of the subject property, the Decker court noted that the duty of the condemner in an eminent domain action is of a “quasi-judicial” nature;  the government must “strike a just balance between the economic interests of the public and those of the landowner,” and the duty of the government's attorney is accordingly of a “high order.”  (Id., at p. 871, 135 Cal.Rptr. 647, 558 P.2d 545.)

Clearly, where the nature of the civil action itself is of a “quasi-judicial” nature, we may fairly demand the same absolute neutrality on the part of a city attorney that we demand of a criminal prosecutor.   However, where the civil action undertaken by the government lacks this special “fairness” element, we perceive no reason in logic or public policy for broadly holding that attorneys who represent the public may not be employed on a contingency fee basis.   The issue is one that must be decided by reference to the particular facts and circumstances of each case.   Here real parties have offered no persuasive rationale for finding that the contingency fee arrangement compromises Mr. Clancy's ability to represent fairly the interests of the public, including real parties.   Nor do we perceive any.   Therefore we decline either to disqualify Mr. Clancy as counsel for the city or to dismiss the petition.

 Lastly, real parties contend that the petition must be dismissed because the underlying action was brought in the name of the City of Corona as well as the State of California.   In support of this contention, real parties cite Code of Civil Procedure section 731, which authorizes county and city attorneys to bring public nuisance actions “in the name of the People of the State of California.”   However, real parties have referred us to no authority, nor have we found any, which precludes the city from being a party to the action.   Under the common law, both cities and counties have long maintained actions to abate a public nuisance.  (See County of Sierra v. Butler (1902) 136 Cal. 547, 550–551, 69 P. 418;  San Francisco v. Buckman (1896) 111 Cal. 25, 43 P. 396.)   We do not believe that the statute, by empowering city and county attorneys to bring actions on behalf of the People of the State, operates to deprive concerned cities or counties from maintaining such actions in their own behalf.  (See Johnson v. V.D. Reduction Co. (1917) 175 Cal. 63, 66, 164 P. 1119 [noting that it was not the intent of the Legislature in enacting the 1905 amendment to Code of Civil Procedure section 731 to diminish the preexisting rights of private parties to maintain public nuisance actions].)

We hold that the City of Corona, as a beneficially interested party in the proceedings below, is a proper party to the petition.

We turn now to our final task, which is to determine whether the trial court properly granted the motion to quash on the grounds that the production of the subpoenaed materials was privileged under the Fifth Amendment.

In Fisher v. United States (1976) 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39, the United States Supreme Court held that the Fifth Amendment privilege against self-incrimination applies only where an individual is “compelled to make a testimonial communication that is incriminating.”  (Id., at p. 408, 96 S.Ct., at p. 1579;  original emphasis.)   Hence three elements must exist simultaneously before the Fifth Amendment is violated:  (1) compulsion of a (2) testimonial communication that is (3) incriminating.  (Fisher v. United States, supra, 425 U.S. at 408, 96 S.Ct. at 1579;  United States v. Authement (5th Cir.1979) 607 F.2d 1129, 1131.)

The Fisher court further held, “[a]lthough the contents of a document may not be privileged, the act of producing the document may be.”  (United States v. Doe (1984) ––– U.S. ––––, ––––, 104 S.Ct. 1237, 1242, 79 L.Ed.2d 552, 560, citing United States v. Fisher, supra, 425 U.S. at 410, 96 S.Ct. at 1580;  emphasis supplied.)   Those communicative aspects implicit in the act of production which the Fisher court recognized were three:  (1) existence, (2) possession, and (3) authentication.  (Fisher v. United States, supra, 425 U.S. at 410, 96 S.Ct. at 1580;  United States v. Doe, supra, 465 U.S. at ––––, 104 S.Ct. at 1242, 79 L.Ed.2d at 560.)

 According to the Fisher court, however, the Fifth Amendment privilege does not attach in every case in which the act of production would compel defendant to admit that the records exist, that they are in defendant's possession, or that they are authentic.  “[T]he more difficult issues are whether the tacit averments ․ are both ‘testimonial’ and ‘incriminating’ for purposes of applying the Fifth Amendment.   These questions do not lend themselves to categorical answers;  their resolution may instead depend on the facts and circumstances of particular cases or classes thereof.”  (Fisher v. United States, supra, 425 U.S. at 410, 96 S.Ct. at 1581.)   When the existence, possession or authentication of the documents are not in issue;  when the act of production has “minimal” evidentiary value;  or when the hazards of incrimination are “trifling or imaginary,” the Fifth Amendment is not implicated.  (Fisher v. United States, supra, 425 U.S. at 411, 96 S.Ct. at 1581;  United States v. Doe, supra, ––– U.S. at –––– – ––––, fns. 12, 13, 104 S.Ct. at 1242–1243, fns. 12, 13;  79 L.Ed.2d at 560–561, fns. 12, 13;  Marchetti v. United States (1968) 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 L.Ed.2d 889.)   Thus in Fisher the court explored the potential incriminating impact of compelling an accountant to produce the tax records of a client and determined that the compulsion would have only a minimal testimonial value or incriminating effect.  “The existence and location of the papers are a foregone conclusion․”  (Id. 425 U.S., at pp. 411–413, 96 S.Ct., at pp. 1581–1582.)   However, in Doe, the court held that the Fifth Amendment privilege protected a sole proprietor from a government subpoena seeking an exhaustive list of business records, ranging from “telephone toll slips” to “work-papers.”  (––– U.S. at ––––, fn. 1, 104 S.Ct. at 1239, fn. 1, 79 L.Ed.2d at 556, fn. 1.)   The Doe court deferred to the factual and legal findings of the District and Appellate Courts which had found that the government subpoena was essentially a fishing expedition:  “[N]othing in the record ․ would indicate that the United States knows ․ that each of the myriad documents demanded by the five subpoenas in fact is in the appellee's possession ․   The most plausible inference ․ is that the Government, unable to prove that the subpoenaed documents exist ․ is attempting to compensate for its lack of knowledge by requiring the appellee to become, in effect, the primary informant against itself.”  (United States v. Doe, supra, ––– U.S. at ––––, fn. 12, 104 S.Ct. at 1243, 79 L.Ed.2d at 561, fn. 12, quoting Matter of Grand Jury Empanelled March 19, 1980 (3d Cir.1982) 680 F.2d 327, 335.)

Numerous cases have applied the Fisher analysis to determine whether the enforcement of a subpoena duces tecum requesting the production of business records carries sufficiently incriminating testimonial significance to invoke the Fifth Amendment privilege against self-incrimination.  (See, e.g., In re Grand Jury Proceedings United States (1st Cir.1980) 626 F.2d 1051, 1056 [submission of a physician's business records would be tantamount to testimony that the documents existed and were authentic];  Matter of Grand Jury Empanelled on January 17, 1980, (D.N.J.1981) 505 F.Supp. 1041, 1043 [that the records exist and are possessed by the target is a “foregone conclusion” and hence “turning them over does not rise to the level of testimony within the protection of the Fifth Amendment”];  see also the discussion and the cases cited in The Rights of Criminal Defendants and the Subpoena Duces Tecum:  The Aftermath of Fisher v. United States (1982) 95 Harv.L.Rev. 683.)   The issue arises less frequently, however, in the context of obscenity prosecutions or civil actions to abate the dissemination of obscene materials.

In Anderson v. Coulter (1972) 108 Ariz. 388, 499 P.2d 103, the City of Phoenix, pursuant to a civil action to enjoin the showing of an allegedly obscene motion picture, served upon defendant a subpoena duces tecum to produce the film in question.   The affidavit in support of the subpoena described the film.   Defendants moved to quash the subpoena based upon the Fifth Amendment privilege against self-incrimination.   The Anderson court rejected the claim on the grounds that the “existence, identity and authenticity” of the film were already established and need not be proved by reference to defendants' compliance with the subpoena.  (Id., 499 P.2d at p. 106.)   The Anderson court relied in part upon the reasoning of Justice Traynor in Jones v. Superior Court (1962) 58 Cal.2d 56, 60, 22 Cal.Rptr. 879, 372 P.2d 919, where he wrote:

“When the prosecution has ample evidence of the existence, identity and authenticity of documents in the defendant's possession and thus does not need to rely on his knowledge to locate them and to identify them or on his testimony to authenticate them, it may be that his implied admission ․ [from their production] ․ would involve too trivial a degree of incrimination to justify invoking the privilege.”  (Anderson v. Coulter, supra, 499 P.2d at 106.)

In Houston v. Manerbino (1974) 185 Colo. 1, 521 P.2d 166, the Colorado Supreme Court rejected a similar claim with respect to a subpoena ordering defendant to produce an allegedly obscene motion picture.   The Houston court deemed it “ludicrous to say that a person can display, promote and show moving pictures ․ and then claim that he has the Fifth Amendment as a shield to prevent production of the moving picture films at a hearing which the courts must conduct on the obscenity issue.”  (Id., 521 P.2d at p. 170.)

 Applying the foregoing legal principles and decisions to the facts of the case before us compels the conclusion that real parties are not entitled to invoke the Fifth Amendment privilege with respect to the publications requested in the subpoena.   The affidavits and declarations filed in support of the subpoena amply demonstrate that the “existence, possession and authenticity” of the magazines are indeed a “foregone conclusion.”  (Fisher v. United States, supra, 425 U.S. at 411, 96 S.Ct. at 1581.)   Moreover, real parties themselves need not testify in order to authenticate or identify the books in question, nor obviously could they be forced to do so under the Fifth Amendment.

Real parties, however, claim that the incriminatory testimonial disclosure implicit in the act of production goes to the element of “scienter.”  Penal Code section 311.2 in part provides:  “Every person who knowingly ․ possesses ․ with intent to distribute ․ any obscene matter is guilty of a misdemeanor.”  (See Smith v. California (1959) 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205.)   They argue that enforcing the subpoena would “force [them] to acquire sufficient knowledge of the materials to facilitate [their] prosecution for knowingly possessing them for sale.”   They contend that Anderson and Houston are distinguishable from this case because the defendants' knowledge of the contents of the films at issue there could be easily inferred from their frequent showings to the public.

Real parties correctly state that the element of scienter in Penal Code section 311.2 requires knowledge by a defendant of the contents of the subject matter.  (People v. Aday 226 Cal.App.2d 520, 540, 38 Cal.Rptr. 199, cert. den. 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964).)   However, we are not persuaded that the acts of gathering and producing the materials requested would be of any evidentiary value in establishing real parties' knowledge of the subject matter.   The subpoena does not require real parties to open the books and peruse the contents.   It simply requires them to produce the books.   To uphold real parties' fatuous claim that the act of production constitutes an implicit admission of knowledge of the contents of the items requested would be ludicrous.   We, therefore, conclude that the motion to quash was improvidently granted.²

Let a peremptory writ of mandate issue directing the Riverside Superior Court to vacate its protective order and to issue a new order directing the production of the subpoenaed items forthwith.

The alternative writ is ordered discharged.

FOOTNOTES

1.   Actually, under the terms of the agreement, Mr. Clancy receives an hourly fee regardless of the result of the lawsuit.   The hourly fee doubles if the lawsuit is successful.   Thus it is the amount, not the very existence, of the fee which is contingent upon the outcome.

2.   Because we hold that the materials are not protected by the Fifth Amendment privilege against self-incrimination, we need not reach petitioners' contention that the “Book Store” clerk may not raise a Fifth Amendment claim as to magazines which are not his personal property, but rather which he holds in a representative capacity.   In passing, we note that all of the cases cited by petitioners concerned business records—none involved the possession for sale of allegedly obscene material or potential criminal liability under an obscenity statute.

RICKLES, Associate Justice.

MORRIS, P.J., and McDANIEL, J., concur.