People ex rel. Clancy v. Superior Court

Decision Date16 September 1985
Citation705 P.2d 347,39 Cal.3d 740,218 Cal.Rptr. 24
CourtCalifornia Supreme Court
Parties, 705 P.2d 347, 54 USLW 2177 The PEOPLE ex rel. James J. CLANCY, as City Attorney, etc., et al., Petitioners, v. The SUPERIOR COURT of Riverside County, Respondent, Helen E. EBEL et al., Real Parties in Interest. Helen E. EBEL et al., Petitioners, v. The SUPERIOR COURT of Riverside County, Respondent, The PEOPLE ex rel. James J. CLANCY, as City Attorney, etc., et al., Real Parties in Interest. L.A. 32041.

James J. Clancy, City Atty., for petitioners and real Parties in interest People.

No appearance for respondent.

Roger Jon Diamond and Hecht, Diamond & Greenfield, Pacific Palisades, for petitioners and real parties in interest Ebel.

MOSK, Justice.

We evaluate the propriety of a contingent fee arrangement between a city government and a private attorney whom it hired to bring abatement actions under the city's nuisance ordinance. We hold the arrangement inappropriate under the circumstances, and in the interests of justice grant the extraordinary relief of disqualifying the attorney.

In 1981 Helen Ebel obtained a business license from petitioner City of Corona (City), and began operating a business known as the Book Store. The Book Store sells sexually explicit reading materials and provides an arcade section for viewing sexually explicit films. This action arises from the City's efforts to close the Book Store.

Within a few months after Ebel opened for business the City adopted two ordinances regulating adult bookstores, one defining "sex oriented material" and the other restricting the sale of such material to certain zones in the City. The city manager informed Ebel she would be compelled to move the Book Store because it was within 750 feet of a church that operated a school for minors. Ebel filed an action in federal court attacking the constitutionality of these ordinances. The circuit court of appeals directed entry of a preliminary injunction in her favor. (Ebel v. City of Corona (9th Cir.1983) 698 F.2d 390.) The district court thereafter held the ordinances unconstitutional and granted a permanent injunction, and the judgment was affirmed on appeal. (Ebel v. City of Corona (9th Cir.1985) 767 F.2d 635.)

Frustrated by its defeats in federal court on the constitutional issues, the City retained the services of Attorney James J. Clancy to abate nuisances under a new ordinance proposed on the same day. The ordinance defined a public nuisance as "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 later the ordinance was passed. Following an investigation by the police department, the City adopted a resolution declaring the Book Store to be a public nuisance and revoking its business license. A complaint was filed, on the relation of the City and Clancy as its "special attorney," against Ebel, her son Thomas Ebel, Eugene Van Zee, and the Book Store, for abatement of a public nuisance, declaratory judgment, and an injunction. Police officers were sent to the Book Store to photograph the magazines on sale and the movies available for viewing. The City then served a subpoena duces tecum on Timothy Groover, a clerk at the store. 1 The subpoena demanded that Groover (now, Thomas Ebel) appear in court and produce the 262 publications that the police had photographed, to permit the court to determine whether the publications are obscene.

The court allowed the City to amend its complaint by substituting "City Attorney of Corona" as Clancy's title in the action, and granted defendants' motion to prevent production of the magazines. The City petitions for writ of mandate to compel the court to vacate its order that Thomas Ebel need not bring the magazines to court, and to order Helen Ebel to produce the magazines. The Ebels cross-petition to compel the court to vacate its order denying defendants' motion to disqualify Clancy as attorney for the City, and its order permitting plaintiffs to amend the complaint. They also seek a writ of prohibition to bar the People from proceeding with Clancy instead of the regular City Attorney of Corona as its representative, and from permitting the City to proceed as a party.

I. Enforcement of the Subpoena Duces Tecum

The parties hotly debate the issue whether the subpoena duces tecum, which orders Thomas Ebel to produce 262 magazines offered for sale at the Book Store, violates his privilege against self-incrimination. 2 Thomas Ebel is potentially subject to prosecution under Penal Code section 311.2, which prohibits the sale of obscene material. The parties agree that certain elements of the crime have been established by independent evidence (i.e., existence, possession, and authentication), and thus the act of producing the magazines is to that extent not "testimonial" and "incriminating." (See Fisher v. United States (1976) 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39). However, the parties disagree whether the element of scienter, which must be proved in order to convict, has been established by other evidence and whether it would be established by the act of gathering the magazines and bringing them into court.

We need not reach this question. The Fifth Amendment cannot be "employed by an individual to avoid production of the records of an organization, which he holds in a representative capacity as custodian on behalf of the group.... '[T]he papers and effects which the privilege protects must be the property of the person claiming the privilege, or at least in his possession in a purely personal capacity.' " (Bellis v. United States (1974) 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678.) This rule applies even if the evidence might incriminate the holder personally. (Id. at p. 88, 94 S.Ct. at p. 2183.) The magazines named in the subpoena duces tecum are the property of the Book Store, an artificial entity that cannot claim the privilege against self-incrimination. (Id. at p. 90, 94 S.Ct. at p. 2184.) Thomas Ebel has possession of the magazines only in his capacity as a clerk at the Book Store. He therefore cannot avoid compliance with the subpoena.

II. The Contingent Fee Arrangement

The contract of employment between the City and Clancy contains a fee provision according to which Clancy is to be paid $60 per hour, "provided, however, that with respect to each and every suit undertaken by Attorney hereunder which results in a final judgment against CITY, said fee shall be reduced to $30.00 per hour ... and provided further that said fee of $60.00 shall also be reduced to $30.00 per hour ... in each and every suit undertaken by ATTORNEY hereunder in which CITY is a successful party if and to the extent that the CITY does not recover its attorney's fees from the unsuccessful party or parties."

The Ebels contend it is improper for an attorney representing the government to have a financial stake in the outcome of an action to abate a public nuisance. They maintain that a government attorney prosecuting such actions must be neutral, as must an attorney prosecuting a criminal case. Accordingly, we must first examine the requirement of neutrality imposed on government attorneys in certain cases, and then determine whether this requirement applies to attorneys prosecuting public nuisance actions.

At the outset we emphasize that the courts have authority to disqualify counsel when necessary in the furtherance of justice. (Code Civ.Proc., § 128, subd. (a)(5); William H. Raley Co. v. Superior Court (1983) 149 Cal.App.3d 1042, 1048, 197 Cal.Rptr. 232; see also People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 261, fn. 4, 137 Cal.Rptr. 476, 561 P.2d 1164; People v. Municipal Court (Byars) (1978) 77 Cal.App.3d 294, 298-299, 143 Cal.Rptr. 491.) Thus we may order that Clancy be dismissed from the case if we find the contingent fee arrangement prejudices the Ebels.

In People v. Superior Court (Greer), supra, 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164, we reviewed the responsibilities associated with the prosecution of a criminal case: "The prosecutor is a public official vested with considerable discretionary power to decide what crimes are to be charged and how they are to be prosecuted. [Citations.] In all his activities, his duties are conditioned by the fact that he 'is the representative not of any [sic ] ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.' " (Id. at p. 266, 137 Cal.Rptr. 476, 561 P.2d 1164, quoting Berger v. United States (1935) 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314.) The American Bar Association's Code of Professional Responsibility elaborates on the public prosecutor's duty to seek justice: "This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all...." (ABA Code of Prof. Responsibility, EC 7-13.)

Thus a prosecutor's duty of neutrality is born of two fundamental aspects of his employment. First, he is a representative of the sovereign; he must act with the impartiality required of those who govern. Second, he has the vast power of the government available to him; he must refrain from abusing that power by failing to act evenhandedly. These duties are not limited to criminal prosecutors: "A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a...

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