1st Street Books v. Marin Community College Dist.

• Decision Date: 23 March 1989
• Docket Number: No. A040727,A040727
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 208 Cal.App.3d 1275 208 Cal.App.3d 1275, 52 Ed. Law Rep. 657 1ST STREET BOOKS et al., Plaintiffs and Respondents, v. MARIN COMMUNITY COLLEGE DISTRICT, Defendant and Appellant. Barnes & Noble Bookstores, Inc., Intervenor and Appellant.

Page 833

256 Cal.Rptr. 833

Previously published at 208 Cal.App.3d 1275

208 Cal.App.3d 1275, 52 Ed. Law Rep. 657

1ST STREET BOOKS et al., Plaintiffs and Respondents, v. MARIN COMMUNITY COLLEGE DISTRICT, Defendant and Appellant Barnes & Noble Bookstores, Inc., Intervenor and Appellant.

No. A040727.

Court of Appeal, First District, Division 4, California.

March 23, 1989.

Review Granted June 22, 1989.

Gary P. Scholick, Littler, Mendelson, Fastiff & Tichy, B. Elise Gautier, George G. Weickhardt, Feldman, Waldman & Kline, San Francisco, Mark Jon Sugarman, Michael N. Rosen, Robin Roger, Robinson, Silverman, Pearce, Aronsohn & Berman, New York City, for appellants.

John W. Francis, La Habra, Earl W. Kintner, Marc L. Fleischaker, David J. Aronofsky, Gerald E. Oberst, Jr., Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., for amici curiae on behalf of appellants.

Margaret G. Fawcett, Law Offices of William T. Bullard, Jr., Mill Valley, for plaintiffs and respondents.

POCHE, Acting Presiding Justice.

Education Code section 81676 specifies that community college districts may establish bookstores "for the purpose of offering for sale textbooks, supplementary textbooks, school supplies, stationery supplies, confectionary items, and related auxiliary school supplies and services." The questions presented are (1) whether a permanent injunction issued to restrain a community college district from selling books not required for academic purposes comports with section 81676; (2) whether that injunction violates the First Amendment; and (3) whether the trial court correctly determined that irreparable injury was demonstrated by the impending violation of section 81676. We answer the first and third questions in the affirmative, and the second in the negative.

BACKGROUND

The events comprising the history of this dispute are easily recounted.

In June of 1986 officials of the Marin Community College District (District) executed an "Agreement For Management And Operation Of Bookstore" with Barnes & Noble Bookstores, Inc. (B & N). Pursuant to this agreement B & N agreed to "provide inventory and consulting services for the District's bookstores" at two campuses for a three-year term commencing on August 1, 1986. In the provision entitled "Pricing Policies" B & N undertook to "sell the textbooks, general books, soft goods, sundries, stationery and art supplies, magazines and novelty items at the following prices: [p] (a) New textbooks: publisher's suggested list price. [p] (b) Used textbooks: twenty-five percent discount from publisher's suggested list price. [p] (c) New York Times Bestsellers: twenty-five percent discount from publisher's price. [p] (d) Bargain and remainder books: thirty to eighty percent discount from publisher's suggested list price. [p] (e) School supplies and other merchandise: competitive with other bookstores and retail stores in the area." The agreement was adopted by the District's Board of Trustees the following month.

On August 7, 1986, a complaint for injunctive relief against the District was filed by 1st Street Books and Artist's Proof Bookstore & Graphics Workshop, ¹ which are privately-owned and and-operated bookstores located in Marin County, each of which "primarily sells general trade books." Plaintiffs alleged that adoption of the agreement by the District's Board of Trustees over plaintiffs' objections was "wrongful and unlawful" in that it was in violation of section 81676. ² They also alleged that "[p]rompt judicial action is required because the college bookstores are scheduled to open on or about August 14, 1986." Plaintiffs further alleged that the "District's wrongful conduct, unless and until enjoined ..., will cause great and irreparable injury to plaintiffs in that the Agreement requires that general trade books be sold, including New York Times bestsellers, bargain books, and remainder books at substantially discounted prices. Plaintiffs, being independent bookstores and not chain discount bookstores, will suffer irreparable injury, and could be driven from the marketplace by such occurrence." As plaintiffs saw it, it was impossible for them "to determine the precise amount of damage which they will suffer if general books are sold pursuant to the Agreement and if defendant District's conduct is not restrained." Notwithstanding the District's protestation that to do so would violate the First Amendment, the trial court on August 12th issued a temporary restraining order enjoining the District "and all persons acting under, in concert with or for it ... from selling or allowing to be sold in the [District's campus bookstores] any books listed on the current New York Times Bestseller list or any books listed on any newly published New York Times Bestseller list which list is published prior to the hearing on the Order to Show Cause [on plaintiffs' request for a preliminary injunction] except those bestsellers assigned or recommended by college instructors."

The trial court was equally unimpressed with the District's objections to the preliminary injunction proposed by plaintiffs. The District argued (among other things) that implementation of its agreement with B & N was permitted by the language of section 81676 authorizing establishment of a bookstore "for the purpose of offering ... related auxiliary school supplies and services"; that plaintiffs had not shown irreparable injury; and that the proposed injunction would be difficult to enforce as well as entailing "stifling of academic freedom" and "a tremendous chilling affect [sic: effect] on the First Amendment rights of the District and its students." Upon analyzing section 81676 the trial court concluded that "it is beyond the authority of the [District's] governing board to establish or operate a full-scale bookstore business on district property." The court therefore issued a preliminary injunction restraining the District "from selling or allowing to be sold ... any books except text books, supplementary text books required or recommended for college course work, and reference books."

After this court denied the District's petition for an extraordinary writ, the trial court granted B & N leave to file a complaint in intervention.

In May of 1987 plaintiffs noticed a motion for summary judgment on their request for a permanent injunction. The oppositions filed by the District and B & N made three general points. First, they contended that operating full-service campus bookstores was authorized by section 81676. Second, they argued that there were numerous constitutional impediments to the relief sought by plaintiffs. Third, they claimed that there was a material issue of triable fact concerning whether plaintiffs had established irreparable injury.

The trial court conducted a hearing on the motion and granted it. The court thereafter entered a judgment in the form of a permanent prohibitory injunction, pursuant to whose terms the District and B & N were forever restrained "from selling or allowing to be sold at ... bookstores owned by defendant District any books except: [p] 1) textbooks; [p] 2) supplementary textbooks; [p] 3) reference books; and [p] 4) tradebooks required or recommended for college credit courses and community education classes for the current or next succeeding academic semester or quarter." B & N and the District (who will henceforth collectively be referred to as defendants) filed separate and timely notices of appeal from the judgment.

REVIEW

I

Defendants have raised an enfilading crossfire of statutory and constitutional contentions against the judgment. The gravamen of their position is that section 81676, although constitutional on its face, is unconstitutional as applied by the trial court. Although ultimately both of these argument groupings will have to be considered, the rule that constitutional questions be deferred if possible (see In re Michael G. (1988) 44 Cal.3d 283, 295, 243 Cal.Rptr. 224, 747 P.2d 1152; Fullerton Union High School Dist. v. Riles (1983) 139 Cal.App.3d 369, 384, 188 Cal.Rptr. 897) obliges us to start with the claims that section 81676 can by itself upset the ban imposed by the trial court.

The Statutory Arguments

The pertinent portion of section 81676 provides: "The governing board of any community college district may establish a bookstore on district property for the purpose of offering for sale textbooks, supplementary textbooks, school supplies, stationery supplies, confectionary items, and related auxiliary school supplies and services." Construing this language, the trial court believed "it is evident that some restriction on the sale of books was intended by the Legislature." The court agreed with the judge who had issued the preliminary injunction "that had the Legislature intended to allow the operation of a full-service, general purpose bookstore to be operated by the District or its agent, then Section 81676 would simply have provided: [p] 'A governing board of any community college district may establish a bookstore on district property.' "

Defendants attack this construction from several angles. They initially argue that the plain words of section 81676 do not admit of limitation. In a related vein, they object to the "required or recommended" language which the trial court grafted on to the statute. Citing numerous other provisions of the Education Code, defendants then contend that the construction adopted by the trial court could not have been intended by the Legislature because it is antithetical to the District's educational mission. If these arguments do not succeed, defendants are then prepared to argue that implementation of their agreement is authorized by the "related auxiliary school supplies and services" language of section 81676. Finally, they tell us that an interpretation of section 81676 which would allow them to sell what they wish must be adopted because the statute is otherwise defenseless against constitutional...