Miller v. State of California

GUSTAFSON, J. Plaintiffs Marvin Miller and Covina Publishing, Inc., a corporation of which Miller is an officer, director and shareholder, filed a complaint May 22, 1968, in which the corporate plaintiff sought a declaration that a book entitled “Intercourse” is not obscene and both plaintiffs sought an injunction prohibiting defendant through any of its agents from prosecuting plaintiffs for publishing, distributing or selling the book. After a demurrer to each cause of action was sustained, plaintiffs on October 1, 1968, filed a first amended complaint. Defendant again successfully demurred and plaintiffs failed to amend whereupon a judgment of dismissal was entered. This appeal follows.

Plaintiffs rely heavily upon Zeitlin v. Amebergh (1963) 59 Cal.2d 901 [31 Cal.Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707] in which the court held that the plaintiffs there were entitled to a declaratory judgment that the book “Tropic of Cancer” was not obscene within the meaning of section 311 of the Penal Code and that its sale would not violate section 311.2 of the Penal Code.

The court below, on the other hand, relied upon the decision of this division of this court in Holden v. Arnebergh (1968) 265 Cal.App.2d 87 [71 Cal.Rptr. 401] (hearing denied by the California Supreme Court and the appeal dismissed by the United States Supreme Court (1969) 394 U.S. 102 [22 L.Ed.2d 112, 89 S.Ct. 926] because “the judgment below rests upon an adequate state ground”). In Holden plaintiffs sought a declaratory [204]judgment that certain books were not obscene and an injunction against prosecuting them for selling and exhibiting the books. On appeal a judgment of dismissal, entered after plaintiffs failed to amend their complaint when a demurrer was sustained, was upheld.

In Holden plaintiffs had been arrested for and charged with violating section 311.2 of the Penal Code. We held that the criminal proceedings afforded plaintiffs speedy and adequate relief and that it was therefore not an abuse of discretion for the trial court to refuse to entertain a complaint for either declaratory or injunctive relief.

In Zeitlin, on the other hand, the bookseller alleged “that he wishes to sell ‘Tropic of Cancer’ in his bookstore, but that he is prevented from offering the book because he fears that if he does so defendant will institute criminal proceedings against him.” The court held that a person should not be required to incur the risk of criminal prosecution in order to determine whether a book is obscene.