Holloway House Publishing Co. v. Sharp

408 F.2d 656

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 1969
• Docket: 22361_1
• Status: Published

Opinion

408 F.2d 656

HOLLOWAY HOUSE PUBLISHING CO., a California corporation, Appellant,
v.
Wesley S. SHARP, individually and as Chief of Police of the
City of San Diego and Edward T. Butler,
individually and as City Attorney for
the City of San Diego, Appellees.

No. 22361.

United States Court of Appeals Ninth Circuit.

Feb. 25, 1969.

Stanley Fleishman (argued), Hollywood, Cal., Gostin & Katz, San Diego, Cal., for appellant.

Kenneth H. Lounsbery (argued), Deputy City Atty., Edward T. Butler, City Atty., Barbara Flood, Legal Intern, San Diego, Cal., for appellees.

Before CHAMBERS and KOELSCH, Circuit Judges, and WHELAN,1 District Judge.

CHAMBERS, Circuit Judge:

Holloway House publishes a version of 'The Complete Works of Marquis de Sade.' The city attorney of San Diego thinks it is obscene. He started state criminal prosecutions against some San Diego vendors of Holloway. This, says Holloway, hurts its business.

Thereupon, Holloway filed an action for an injunction and a declaratory judgment. A deprivation of civil rights is asserted and it is insisted that it was not a suit to enjoin criminal prosecution.

The motion of defendants for a summary judgment was granted. The basis for the action of the district court is not crystal clear, but the defendants had urged the doctrine of abstention. Independently we are convinced it was a proper case for abstention, and we affirm the judgment of the district court. The determination was obviously without prejudice either to plaintiff's right to sue at another time if the circumstances are different, and without prejudice to the fact that at some other time the district court and we may have to seriously consider the contents of the ugly old books.

1 FRANCIS C. WHELAN, United States District Judge, Central District of California, sitting by designation