Riemer v. Hart

Opinion

ELKINGTON, J.

The instant appeal is taken by the City of Oakland and by George Hart, its chief of police (hereafter, collectively, the City), from an order of the superior court directing issuance of a

revised

preliminary injunction calculated to restrain certain • police

[295]

practices in the enforcement of the state’s so-called anti-prostitution statute found in Penal Code section 647, subdivision (b). It had been contended by plaintiffs that the subject police practices constituted invidious discrimination against females, in contravention of the equal protection of the laws and other rights secured to all persons by the state and federal Constitutions.

The relevant facts of the appeal are uncontroverted.

In the same action the superior court had previously determined that the police practices here at issue were constitutionally improper, and ordered a preliminary injunction. Upon an appeal from that order another division of this court, in an unpublished opinion, affirmed the order insofar as it held the subject police practices to be constitutionally proscribed. But the court nevertheless reversed the order for the reason that it was vague and overbroad. Thereafter, December 18, 1975, the superior court entered an order for a revised preliminary injunction restraining the same police practices. It is the latter order from which the appeal now before us is taken.

The City, among other things, has urged in the superior court and in this court that a change in the law, brought about by

In re Elizabeth G.

(1975) 53 Cal.App.3d 725 [126 Cal.Rptr. 118] since the earlier appellate decision of this case, mandates reversal of the superior court’s revised preliminary injunction. Plaintiffs respond that the earlier appellate decision of the instant action, according to well-established principles, must be followed as the

“law of the

case” (italics added). (See generally, 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 633-652, pp. 4552-4570.)