Riverside County Sheriff's Dept. v. Stiglitz , 60 Cal. 4th 624 ( 2014 )

Filed 12/1/14
IN THE SUPREME COURT OF CALIFORNIA
RIVERSIDE COUNTY SHERIFF‘S )
DEPARTMENT, )
)
Plaintiff and Respondent, )
) S206350
v. )
) Ct.App. 4/2 E052729
JAN STIGLITZ, as Hearing Officer, etc., )
) Riverside County
Defendant and Respondent; ) Super. Ct. No. RIC10004998
)
KRISTY DRINKWATER, )
)
Real Party in Interest and )
Respondent; )
)
RIVERSIDE SHERIFFS‘ )
ASSOCIATION, )
)
Intervener and Appellant. )
____________________________________)
)
RIVERSIDE COUNTY SHERIFF‘S )
DEPARTMENT, )
)
Plaintiff and Respondent, )
)
v. )
) Ct.App. 4/2 E052807
JAN STIGLITZ, as Hearing Officer, etc., )
) Riverside County
Defendant and Respondent; ) Super. Ct. No. RIC10004998
)
KRISTY DRINKWATER, )
)
Real Party in Interest and )
Appellant. )
____________________________________)
Here we hold that when hearing an administrative appeal from discipline
imposed on a correctional officer, an arbitrator may rule upon a discovery motion
for officer personnel records, commonly referred to as a Pitchess motion.
(Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess); Evid. Code, §§ 1043,
1045.) Evidence Code section 1043 expressly provides that Pitchess motions may
be filed with an appropriate ―administrative body.‖ The language reflects a
legislative intent that administrative hearing officers be allowed to rule on these
motions. This holding harmonizes the statutory scheme with other Evidence Code
provisions and furthers the goals of the Public Safety Officers Procedural Bill of
Rights Act (Gov. Code, § 3300 et seq.).
I. BACKGROUND
The Riverside County Sheriff‘s Department (the department) fired Deputy
Kristy Drinkwater for falsifying her payroll forms. A memorandum of
understanding (MOU) between the Riverside Sheriffs‘ Association (Sheriffs‘
Association) and the county provided for an administrative appeal. The parties
chose arbitrator Jan Stiglitz as the hearing officer.
Drinkwater intended to urge a disparate treatment defense, claiming that
others had committed similar misconduct but were not fired. Accordingly, she
sought discovery of redacted records ―from personnel investigations of any
Department employees who have been disciplined for similar acts of misconduct.‖
(See Pegues v. Civil Service Com. (1998) 67 Cal. App. 4th 95, 105-106; Talmo v.
Civil Service Com. (1991) 231 Cal. App. 3d 210, 229-231.) Limiting her request to
events during the previous five years, she sought incident summaries, the rank of
2
the officer, and the discipline imposed. The department objected, arguing in part
that Drinkwater could not satisfy the requirements for a Pitchess motion under
Evidence Code sections 1043 and 1045, and could not establish the good cause
required for discovery. Stiglitz denied the motion without prejudice, ruling the
department need not search its records for similar disciplinary cases. Instead,
Drinkwater was obligated to identify particular officers whose records she
believed were relevant to her claim.
Drinkwater renewed her motion, supported by counsel‘s declaration that 11
named officers had allegedly committed similar misconduct but received little or
no discipline. Stiglitz ordered production of the 11 officers‘ records for in camera
review.
The department sought a writ of administrative mandate in superior court.
(See Code Civ. Proc., § 1094.5.) It argued initially that Drinkwater failed to
establish good cause for discovery because counsel‘s declaration was speculative
and Pitchess discovery was only available for officers involved in the underlying
incident at issue. The department then filed a supplemental brief citing the recent
case of Brown v. Valverde (2010) 183 Cal. App. 4th 1531 (Brown). Brown held
that a driver facing a license suspension for driving under the influence could not
seek Pitchess discovery in a Department of Motor Vehicles (DMV) administrative
proceeding. (See discussion, post.) Relying upon Brown, the department argued
only judicial officers could grant Pitchess motions, depriving Stiglitz of authority
to rule. The superior court agreed and granted mandate, ordering Stiglitz to
reverse his prior order.
The Sheriffs‘ Association sought to intervene, moving to set aside the
mandate order and to secure a new hearing. Intervention was granted. After
additional briefing and a new hearing, the superior court again granted the
department‘s mandate petition, relying upon Brown.
3
Drinkwater and intervener Sheriffs‘ Association sought review. In
consolidated appeals, the Court of Appeal reversed, distinguishing Brown and
criticizing its reasoning. We affirm.
II. DISCUSSION
The department again urges that only judicial officers are authorized to rule
on Pitchess motions. That argument fails in light of the governing statutes.
A. The Pitchess Statutes
In Pitchess, this court held a criminal defendant could obtain discovery of
certain law enforcement personnel records upon a sufficient showing of good
cause. (Pitchess, supra, 11 Cal.3d at pp. 537-540.) ―In 1978, the California
Legislature codified the privileges and procedures surrounding what had come to
be known as ‗Pitchess motions‘ . . . through the enactment of Penal Code sections
832.7 and 832.8 and Evidence Code sections 1043 through 1045.‖ (City of Santa
Cruz v. Municipal Court (1989) 49 Cal. 3d 74, 81, fn. omitted (City of Santa
Cruz).) Those sections create a statutory scheme making these records
confidential and subject to discovery only through the procedure set out in the
Evidence Code. (City of Santa Cruz, at pp. 81-82.) The sole issue here is
whether, by statute, these motions may only be ruled on in the superior court, or
whether they can be resolved by an administrative hearing officer. In answering
this question of statutory interpretation, our goal is to effectuate the Legislature‘s
intent. (People v. Johnson (2013) 57 Cal. 4th 250, 260; People v. Cornett (2012)
53 Cal. 4th 1261, 1265.) ― ‗When interpreting statutes, we begin with the plain,
commonsense meaning of the language used by the Legislature. [Citation.] If the
language is unambiguous, the plain meaning controls.‘ [Citation.] ‗[W]henever
possible, significance must be given to every word [in a statute] in pursuing the
legislative purpose, and the court should avoid a construction that makes some
4
words surplusage.‘ [Citation.] ‗[W]e may reject a literal construction that is
contrary to the legislative intent apparent in the statute or that would lead to absurd
results . . . .‘ [Citation.]‖ (People v. Rodriguez (2012) 55 Cal. 4th 1125, 1131;
accord, Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52
Cal. 4th 499, 518-519.) We consider the applicable statutes in turn.
Penal Code section 832.7, subdivision (a) provides in part: ―Peace officer
or custodial officer personnel records and records maintained by any state or local
agency pursuant to [Penal Code] Section 832.5 [regarding the investigation and
retention of citizen complaints], or information obtained from these records, are
confidential and shall not be disclosed in any criminal or civil proceeding except
by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.‖ (Italics
added.) Penal Code section 832.8 defines ―personnel records,‖ a definition not
disputed here.1
Evidence Code section 1043, subdivision (a) reads in part: ―In any case in
which discovery or disclosure is sought of peace or custodial officer personnel
records . . . , the party seeking the discovery or disclosure shall file a written
motion with the appropriate court or administrative body . . . .‖ (Italics added.)
The expansive language of Evidence Code section 1043, subdivision (a) does two
things. First, it makes clear that Pitchess motions may be brought in both civil and
criminal cases. (See Commission on Peace Officer Standards & Training v.
Superior Court (2007) 42 Cal. 4th 278, 293 (Peace Officer Standards); Pen. Code,
1 Penal Code section 832.8 defines personnel records as any file maintained
under an individual‘s name by his or her employer, and includes information such
as personal data, medical history, employee ―advancement, appraisal, or
discipline,‖ complaints or investigation of complaints pertaining to the
performance of the officer‘s duties, and ―[a]ny other information the disclosure of
which would constitute an unwarranted invasion of personal privacy.‖
5
§ 832.7, subd. (f).) Second, Evidence Code section 1043 specifically states the
motion should be filed in the appropriate court ―or administrative body.‖ Sections
1043 and 1045 appear in division 8 of the Evidence Code dealing with privileges.
Chapter 4, article 9 of that division contains definitions to govern the construction
of sections contained in division 8. Evidence Code section 901 expansively
defines a ―proceeding‖ as ―any action, hearing, investigation, inquest, or inquiry
(whether conducted by a court, administrative agency, hearing officer, arbitrator,
legislative body, or any other person authorized by law) in which, pursuant to law,
testimony can be compelled to be given.‖ (Italics added.) The Law Revision
Commission explained that this definition included ―administrative proceedings‖
and ―arbitration proceedings‖ (Cal. Law Revision Com. com., reprinted at 29B pt.
3A West‘s Ann. Evid. Code (2009 ed.) foll. § 901, p. 213), and that this broad
definition was necessary to protect privileges by making them applicable to
nonjudicial proceedings (id., foll. § 910, pp. 216-217).
As explained in City of Santa Cruz, Evidence Code section 1043 sets out
the initial good cause showing an applicant must make to even begin the discovery
process. If that showing is successful, Evidence Code section 1045 governs the
conduct of the resultant hearing in camera. The materials sought must be shown
―relevant to the subject matter involved in the pending litigation.‖ (Evid. Code,
§ 1045, subd. (a).) Certain categories of information are not discoverable.2 (Evid.
Code, § 1045, subds. (a), (b); see City of Santa Cruz, supra, 49 Cal.3d at p. 83.)
2 Information excluded from disclosure include complaints regarding
incidents occurring five or more years before the event at issue, facts ―that are so
remote as to make disclosure of little or no practical benefit,‖ and, in any criminal
case, the conclusions of an officer investigating a complaint. (Evid. Code, § 1045,
subd. (b).)
6
B. Evidence Code Section 1043 and the Lack of a Transfer Mechanism
The department observes that Evidence Code section 1045 repeatedly refers
to ―the court‖ as the entity that must conduct an in camera review, determine
relevance, and issue appropriate protective orders. It argues that because ―the
court‖ appears five3 times in Evidence Code section 1045, these references trump
the single reference to ―administrative body‖ in Evidence Code section 1043. The
department argues that although Evidence Code section 1043 mandates that
Pitchess motions be filed in ―the appropriate court or administrative body,‖
Evidence Code section 1045‘s repeated reference to ―the court‖ means that only
judicial officers may rule on them.
This argument fails for several reasons. First, it simply reads
―administrative body‖ out of Evidence Code section 1043. If the Legislature
intended that only the superior court could rule on Pitchess motions, it could easily
have said so. There is no discernable reason why the Legislature would expressly
provide in Evidence Code section 1043 that a Pitchess motion may be filed before
an administrative body, then implicitly suggest in Evidence Code section 1045 that
such a body was powerless to act upon the motion because only ―the court‖ may
conduct the required in camera review. Indeed, such an interpretation would mean
the Legislature had expressly provided for the doing of an idle act: filing a motion
in a body not authorized to rule on it.
3 See Evidence Code section 1045, subdivisions (b) (―In determining
relevance, the court shall examine . . . :‖), (c) (―the court shall consider . . . .‖), (d)
(―the court may make any order which justice requires . . . .‖), (e) (―The court
shall . . . order that the records disclosed or discovered may not be used for any
purpose other than a court proceeding pursuant to applicable law.‖). The
department counts as a sixth reference the use of ―the court‖ in Evidence Code
section 915, subdivision (b). This statute predated the statutory Pitchess scheme,
and its reference to ―the court‖ does not support the department‘s position in any
event.
7
Second, the argument completely ignores the broad definition of
―proceeding‖ in Evidence Code section 901, which includes administrative
hearings and arbitrations. Disregarding that section violates the principle that we
consider the language of the entire scheme and related statutes, harmonizing the
terms when possible. If any ambiguity remains, we may examine the legislative
history and the stated purpose of the scheme to guide our interpretation. (See
Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55
Cal. 4th 783, 803.) Evidence Code section 900 reflects a legislative mandate that
the definitions provided ―govern the construction‖ of the division in which
Evidence Code sections 1043 and 1045 appear.
Further, had the Legislature intended that Pitchess motions could only be
conducted in the superior court, it could have provided a mechanism to transfer a
motion from an administrative proceeding to the superior courts. It did not do so.
Evidence Code section 1043 makes no provision for the transfer of Pitchess
motions from an administrative setting to the superior court. The parties agree that
no other statute authorizes such a transfer. A transfer procedure would require the
creation of an extraordinary procedure because, in a case like this one, there is no
case or controversy pending in the superior court.
While the parties cite no statutory transfer mechanism, amici curiae suggest
one may be found through various other provisions. The Los Angeles Police
Protective League (the Protective League) points to two statutes that might permit
an extraordinary transfer. First, it cites Code of Civil Procedure4 section 1281.8,
subdivision (b), which allows a party in arbitration to file in superior court ―an
application for a provisional remedy in connection with an arbitrable controversy,
4 Unspecified statutory references are to the Code of Civil Procedure.
8
but only upon the ground that the award to which the applicant may be entitled
may be rendered ineffectual without provisional relief.‖ (Italics added.) ―The
logical reason for the requirement that an applicant be required to show that an
arbitration award may be rendered ineffectual is to ensure that the court does not
invade the province of the arbitrator—i.e., the court should be empowered to grant
provisional relief in an arbitrable controversy only where the arbitrator‘s award
may not be adequate to make the aggrieved party whole.‖ (Woolley v. Embassy
Suites, Inc. (1991) 227 Cal. App. 3d 1520, 1527, italics added; see California Retail
Portfolio Fund GMBH & Co. KG v. Hopkins Real Estate Group (2011) 193
Cal. App. 4th 849, 856.) Section 1281.8, thus, does not speak to any and all types
of harm. It addresses only a circumstance in which a party might prevail in an
arbitration but still have no recourse due to some changing condition. (See
California Retail Portfolio Fund GMBH & Co. KG, at pp. 859-862 [affirming writ
of attachment under section 1281.8 due to the defendant‘s potential insolvency,
which might have rendered an arbitration award ineffectual].)
This scheme does not apply here. Initially, section 1281.8 only applies to
applications by parties. There may be instances in which the custodian of records
is not a party to the arbitration. Here, although the department is a party, the only
substantive ―award‖ to which it may be entitled in the arbitration is a confirmation
that its decision to terminate Drinkwater was proper. The department does not
explain how that potential confirmation would be rendered ineffectual by
production of the records sought, or by any proper order of disclosure.
The Protective League also cites a provision of the Public Safety Officers
Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.). Government
Code section 3309.5, subdivision (d)(1) provides: ―In any case where the superior
court finds that a public safety department has violated any of the provisions of
this chapter, the court shall render appropriate injunctive or other extraordinary
9
relief to remedy the violation and to prevent future violations of a like or similar
nature, including, but not limited to, the granting of a temporary restraining order,
preliminary injunction, or permanent injunction prohibiting the public safety
department from taking any punitive action against the public safety officer.‖ This
provision was enacted to prevent police departments from violating the rights of
officers. (See Jaramillo v. County of Orange (2011) 200 Cal. App. 4th 811, 827-
828.) It simply does not speak to the situation at issue here. Further, nothing in
the POBRA‘s general grant of a right to administrative appeal (Gov. Code,
§§ 3304, subd. (b), 3304.5) suggests an authorization to transfer a matter from an
administrative proceeding to the superior court.
The California State Association of Counties and the California League of
Cities suggest a writ of administrative mandate might provide a transfer
mechanism. They propose that the hearing officer could begin the Pitchess
inquiry under Evidence Code section 1043. If the hearing officer finds a good
cause showing has been made, a party may seek administrative mandate. The
superior court could then review the records under Evidence Code section 1045.
Such an interpretation would morph the mandate statute beyond its
delineated contours. The Code of Civil Procedure permits administrative mandate
for inquiry ―into the validity of any final administrative order,‖ but only as to
―whether the respondent has proceeded without, or in excess of, jurisdiction;
whether there was a fair trial; and whether there was any prejudicial abuse of
discretion.‖ (§ 1094.5, subds. (a), (b).) In that mandate proceeding, the superior
court would only be empowered to review the propriety of the good cause
determination and production order. If it determined that the order was proper, the
court‘s review role would end. The authority conferred under section 1094.5 does
not grant the court broader jurisdiction to actually conduct a review of the records
10
produced. Nor does it create a cause or controversy beyond the question referred
to in the statutory language.
Similarly, we are not authorized to create a nonstatutory transfer
mechanism here. Drinkwater cites section 187, which states: ―When jurisdiction
is, by the Constitution or this Code, or by any other statute, conferred on a Court
or judicial officer, all the means necessary to carry it into effect are also given; and
in the exercise of this jurisdiction, if the course of proceeding be not specifically
pointed out by this Code or the statute, any suitable process or mode of proceeding
may be adopted which may appear most conformable to the spirit of this code.‖
―The section does not speak to jurisdiction; it does not create jurisdiction; rather,
the existence of jurisdiction is the premise for its application. Where jurisdiction
exists from other sources, Code of Civil Procedure section 187 grants courts
authority to exercise any of their various powers as may be necessary to carry out
that jurisdiction.‖ (People v. Picklesimer (2010) 48 Cal. 4th 330, 338
(Picklesimer).)
Code of Civil Procedure section 187 (CCP section 187) comes into play
only when a court has lawful jurisdiction. No statute confers jurisdiction on the
superior court to hear a Pitchess motion when, as here, the motion is filed with an
administrative hearing officer. Neither Evidence Code section 1045 nor Evidence
Code section 915 speaks to jurisdiction. (See discussion, post.) At most, those
provisions describe the duties of a court if the motion is properly before it. Only
Evidence Code section 1043, which allows a Pitchess motion to be filed ―with the
appropriate court or administrative body,‖ speaks to jurisdiction. This
understanding is confirmed by Evidence Code section 1043, subdivision (b)(3),
which provides that a motion must include affidavits that ―set[] forth the
materiality thereof to the subject matter involved in the pending litigation . . . .‖
(Italics added.) Here, the pending litigation is the administrative appeal conducted
11
pursuant to the MOU. The only express grant of jurisdiction reflected in the
Pitchess statutes allows the matter to be placed before the hearing officer. CCP
section 187 requires an independent grant of jurisdiction by constitution or statute.
Evidence Code section 1043 articulates the appropriate venue for the filing of a
Pitchess motion. These provisions, read together, do not authorize the judicial
creation of a transfer mechanism from the hearing officer to superior court. (See
Picklesimer, supra, 48 Cal.4th at p. 338 [refusing to apply CCP § 187 to find the
superior court had jurisdiction to hear a postjudgment motion for relief from an
improper sex offender registration requirement]; Swarthout v. Superior Court
(2012) 208 Cal. App. 4th 701, 707-708 [same as to a postconviction motion to
transfer an inmate]; People v. Ainsworth (1990) 217 Cal. App. 3d 247, 254-255
[same as to postconviction discovery motion].)
Drinkwater also suggests that ―all courts have inherent supervisory or
administrative powers which enable them to carry out their duties, and which exist
apart from any statutory authority.‖ This argument suffers the same defect as the
one above. Courts have supervisory authority to ― ‗control litigation before
them. . . . [Citation.]‘ ‖ (In re Reno (2012) 55 Cal. 4th 428, 522, italics added.) A
court has no authority to confer jurisdiction upon itself where none exists. Indeed,
in Pitchess itself, although we suggested that a court had ―inherent power to order
discovery when the interests of justice so demand‖ (Pitchess, supra, 11 Cal.3d at
p. 535), there was no question that the court had jurisdiction over the pending
criminal case. Similar exercises of a court‘s inherent supervisory authority have
occurred in the context of a court that already had jurisdiction over the matter.5
5 See Shively v. Stewart (1966) 65 Cal. 2d 475, 479-480 (nonstatutory
discovery); Citizens Utilities Co. v. Superior Court (1963) 59 Cal. 2d 805, 811-813
(compensation for mandatory improvements made after condemnation); Tide
(footnote continued on next page)
12
The Legislature did not specify a transfer mechanism in the Pitchess
statutes. No other statute or authority exists for such a transfer. Accordingly, we
conclude that by expressly permitting filing with an appropriate administrative
body in Evidence Code section 1043, the Legislature intended to allow
administrative hearing officers to decide such motions without court intervention.
The department‘s contrary construction of the scheme violates ―the rule of
construction that courts should, if possible, accord meaning to every word and
phrase in a statute to effectuate the Legislature‘s intent.‖ (People v. Cobb (2010)
48 Cal. 4th 243, 253; St. Marie v. Riverside County Regional Park & Open-Space
Dist. (2009) 46 Cal. 4th 282, 289.) There is no indication the Legislature
contemplated the filing of an ineffectual motion with a body that could not
consider it.
C. Evidence Code Sections 1045 and 915
Evidence Code section 1045‘s repeated reference to the duties of ―the
court‖ can be understood in the context of the legislative history of the Pitchess
statutes. When Evidence Code sections 1043 and 1045 were enacted, the
(footnote continued from previous page)
Water Associated Oil Co. v. Superior Court (1955) 43 Cal. 2d 815, 825-826 (cross-
complaints); People v. Castello (1998) 65 Cal. App. 4th 1242, 1246-1250
(reconsideration of interim ruling); In re Amber S. (1993) 15 Cal. App. 4th 1260,
1263-1267 (control of testimony); Cottle v. Superior Court (1992) 3 Cal. App. 4th
1367, 1376-1381 (exclusion of evidence); Asbestos Claims Facility v. Berry &
Berry (1990) 219 Cal. App. 3d 9, 18-23 (designating defense counsel program in
asbestos litigation); Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200
Cal. App. 3d 272, 286-291 (evidence sanction); James v. Superior Court (1978) 77
Cal. App. 3d 169, 175-176 (juvenile competency hearing); cf. Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal. 4th 953, 967-968 (control of litigation); Walker v.
Superior Court (1991) 53 Cal. 3d 257, 266-267 (preunification authority to transfer
cases to the municipal court).
13
Legislature was focused primarily upon our Pitchess decision and its
consequences in the context of criminal prosecutions, which obviously occur
before courts. ―After this court rendered its decision, concerns were expressed to
the Legislature that, in response to Pitchess, law enforcement departments were
destroying personnel records in order to prevent discovery; in some instances,
criminal charges had been dismissed because the records to which the defendant
would have been entitled no longer were available. (See Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 1436 (1977–1978 Reg. Sess.) as introduced, p. 7; Sen.
Com. on Judiciary, Analysis of Sen. Bill No. 1436 (1977–1978 Reg. Sess.) as
amended Apr. 3, 1978; Assem. Com. on Crim. Justice, Analysis of Sen. Bill No.
1436 (1977–1978 Reg. Sess.) as amended Aug. 7, 1978.) As a result of these
concerns, Senate Bill No. 1436 was enacted, requiring that records relating to
citizen complaints be maintained for a period of five years. (Stats. 1978, ch. 630,
§ 4, p. 2083, amending [Pen. Code,] § 832.5, subd. (b).) The statute also
established procedures, consistent with Pitchess, permitting discovery of peace
officer personnel records in civil or criminal cases only after an in camera review
of the records by a judge and a determination that the information sought is
relevant to the pending litigation. (Stats. 1978, ch. 630, §§ 1 & 3, pp. 2082–2083,
adding Evid. Code, §§ 1043 & 1045.)‖ (Peace Officer Standards, supra, 42
Cal.4th at p. 293.)
The reality that Pitchess motions are so frequently made in the context of
criminal prosecutions would explain why Evidence Code section 1045 references
―the court.‖ However, the Legislature recognized in Evidence Code section 1043
that Pitchess motions may be relevant in other contexts, thus explaining its broad
language allowing the filing of the motion in ―any case‖ before ―the appropriate
court or administrative body.‖ Given the legislative history of the Pitchess
statutes, the expansive language of Evidence Code section 1043, and the absence
14
of a transfer mechanism, the Legislature‘s reference to ―the court‖ in Evidence
Code section 1045 cannot be interpreted as a coded expression of legislative intent
to substantively limit who may rule on Pitchess motions.
The department argues that Evidence Code section 915 constitutes such a
substantive limitation. Evidence Code section 915, subdivision (a) states that in
ruling on a claim of privilege, the presiding officer cannot require disclosure of the
assertedly privileged information before ruling on the privilege claim. Evidence
Code section 915, subdivision (b) provides an exception when the court is unable
to rule unless it knows the content of the assertedly privileged information. In
such a case, the court may order the disputed information disclosed for review in
chambers. The Law Revision Commission‘s comments following Evidence Code
section 915 noted that ―[t]he exception in subdivision (b) applies only when a
court is ruling on the claim of privilege. Thus, in view of subdivision (a),
disclosure of the information cannot be required, for example, in an administrative
proceeding.‖ (Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid.
Code, supra, foll. § 915, p. 256.)
The department observes Evidence Code section 1045, subdivision (b)
directs that ―[i]n determining relevance, the court shall examine the [sought]
information in chambers in conformity with Section 915 . . . .‖ Because Evidence
Code section 915 does not mention administrative proceedings, the department
argues hearing officers have no authority to decide Pitchess motions. The
department‘s argument is unpersuasive for several reasons. First, Evidence Code
section 1045 simply requires that an in camera Pitchess hearing must be had ―in
conformity with‖ Evidence Code section 915, ― ‗i.e., out of the presence of all
persons except the person authorized to claim the privilege and such other persons
as he or she is willing to have present . . . .‘ ‖ (Alford v. Superior Court (2003) 29
Cal. 4th 1033, 1038 (Alford); see City of Santa Cruz, supra, 49 Cal.3d at p. 83.)
15
We observed in People v. Mooc (2001) 26 Cal. 4th 1216 (Mooc): ―[T]o protect the
officer‘s privacy, the examination of documents and questioning of the custodian
should be done in camera in accordance with the requirements of Evidence Code
section 915, and the transcript of the in camera hearing and all copies of the
documents should be sealed.‖ (Id. at p. 1229.) Thus, we have recognized that
Evidence Code section 1045 referenced Evidence Code section 915 only to the
extent the latter provision defined what procedure was required at an in camera
hearing, not who would conduct the hearing. The department‘s reading of the
statute would render the reference to Evidence Code section 915 mere surplusage.
Second, section 915 was enacted as part of the original Evidence Code in
1965. The Law Revision Commission‘s comment predated both our Pitchess
decision and the Legislature‘s subsequent codification of it. It is, then, a poor
indicator of legislative intent as to the proper scope of the Pitchess scheme. The
commission‘s comments informed the Legislature‘s understanding at the time it
enacted the Evidence Code. They did not bar the Legislature from taking future
action, as it did when it amended the code 13 years later following this court‘s
Pitchess decision. (Cf. Duarte v. Chino Community Hospital (1999) 72
Cal. App. 4th 849, 856, fn. 3.)
Third, and most problematic, the department‘s interpretation of Evidence
Code section 915 suffers from the same defect as its interpretation of Evidence
Code section 1045. It requires us to conclude that the Legislature intended to also
permit Pitchess filings with an appropriate ―administrative body‖ under Evidence
Code section 1043, yet render that body unable to act on them. The Legislature
could not have intended to provide for the idle act of filing ineffectual motions.
16
D. The Purposes Behind the Pitchess Statutes and POBRA
Our conclusion is also consistent with the purposes behind the POBRA.
The POBRA, to which these parties have contractually bound themselves, ―sets
forth a number of basic rights and protections which must be accorded individual
public safety officers by the public agencies which employ them.‖ (White v.
County of Sacramento (1982) 31 Cal. 3d 676, 679.) Included is the right to
administratively appeal an adverse employment decision, ―to give a peace officer
‗an opportunity . . . ―to convince the employing agency to reverse its decision‖ ‘ to
take punitive action.‖ (Copley Press, Inc. v. Superior Court (2006) 39 Cal. 4th
1272, 1287 (Copley Press), italics omitted; County of Riverside v. Superior Court
(2002) 27 Cal. 4th 793, 799.) The Legislature declared that ―effective law
enforcement depends upon the maintenance of stable . . . relations, between public
safety employees and their employers,‖ and that basic protections for officers were
necessary to preserve that stability. (Gov. Code, § 3301.) Allowing relevant
discovery to be ordered in an administrative hearing furthers these goals.
Our conclusion is also consistent with the overall aims of the Pitchess
scheme. Although the department adamantly argues the sole purpose of the
statutes was to rein in Pitchess motions, that characterization is not entirely
accurate. As discussed, the Pitchess statutes reflected the Legislature‘s attempt to
balance a litigant‘s discovery interest with an officer‘s confidentiality interest.
(See Peace Officer Standards, supra, 42 Cal.4th at p. 293; Garcia v. Superior
Court (2007) 42 Cal. 4th 63, 69-70 (Garcia); City of Santa Cruz, supra, 49 Cal.3d
at p. 84.) Whether filed before a court or an administrative hearing officer,
interests must still be balanced when ruling on a Pitchess motion.
We emphasize that here there is no question hearing officer Stiglitz, an
attorney, is qualified to rule on the Pitchess motion. The MOU provides that a
hearing officer be selected from a mutually agreed-upon list. (MOU, art. XII,
17
§ 14, subd. A.) If the department believed Stiglitz was not qualified for any
reason, it could have removed him from the list or stricken him as an available
hearing officer in this case. In any event, the Legislature in Evidence Code section
914 has determined that hearing officers generally have the authority to rule on
claims of privilege in the same manner as courts.6
Further, we observe that this case reflects several safeguards against
improper disclosure of confidential records. The MOU here expressly provides
that the administrative hearing is a ―private proceeding‖ between the disciplined
officer and the county. (MOU, art. XII, § 14, subd. (H)(9).) Officer personnel
records are confidential under Penal Code section 832.7, and we have held such
records produced at administrative disciplinary proceedings are not subject to
public disclosure. (See Copley Press, supra, 39 Cal.4th at pp. 1286-1299.) In
addition, any discovered records may only be used in the proceeding at issue.7
(See Evid. Code, § 1045, subd. (e); Alford, supra, 29 Cal.4th at pp. 1039-1043.)
An additional confidentiality safeguard appears in Evidence Code section
1045, subdivision (c), which provides that ―[i]n determining relevance where the
issue in litigation concerns the policies or pattern of conduct of the employing
agency, the court shall consider whether the information sought may be obtained
from other records maintained by the employing agency in the regular course of
agency business which would not necessitate the disclosure of individual
6 See Evidence Code section 914, subdivision (a) (―The presiding officer
shall determine a claim of privilege in any proceeding in the same manner as a
court determines such a claim under Article 2 (commencing with Section 400) of
Chapter 4 of Division 3.‖).
7 The parties are free to include other protective language in their MOUs,
including an explicit agreement that any Pitchess material can only be used in
connection with the proceeding in which it is sought.
18
personnel records.‖ Thus, upon an appropriate finding, other data could be
released in lieu of personnel records.
We have also clarified that an officer‘s entire personnel file need not be
presented for review, only materials of the type requested. (Mooc, supra, 26
Cal.4th at pp. 1228-1230.) In the present case, such materials would be limited to
incidents involving conduct similar to Drinkwater‘s. This limitation balances
privacy interests while permitting focused discovery.
The department does not argue that Drinkwater‘s disparate treatment
defense is invalid or that the discovery she seeks is irrelevant to that defense.
Accordingly, we have no occasion to discuss the availability or scope of such a
defense. Drinkwater‘s Pitchess motion also named the specific officers whose
records she sought, reducing the possibility of an improper ―fishing expedition.‖
The department relies heavily upon Brown, supra, 183 Cal. App. 4th 1531, a
case readily distinguishable. Brown concluded that a Pitchess motion was
inconsistent with the statutory scheme by which a driver‘s license may be
suspended after a drunk driving arrest. The Brown court reasoned a Pitchess
motion would frustrate the Legislature‘s aim to quickly remove unsafe drivers
from the road using an administrative procedure. Further, the hearing addressed
only whether the licensee drove with a blood-alcohol level above the legal limit.
The relevance of Pitchess discovery in that context was questionable. (Brown, at
pp. 1555-1557.) To the extent Brown rejected the claim ―that the Legislature
intended Pitchess discovery to be available in all administrative proceedings‖
where an officer‘s credibility was at issue (id., at p. 1555, italics added), such
conclusion is inapposite here. The department concedes that the discovery
Drinkwater seeks is relevant to the review of her discipline and does not bear on
the credibility of officers whose records are sought. The question here is not
whether those officers might be credible, but whether department decisionmakers
19
granted those officers disparate treatment. Additionally, unlike the license
suspension context, allowing Pitchess motions in this case furthers the goals of the
POBRA, and honors the Legislature‘s Pitchess scheme. In any case, ― ‗ ―[i]t is
axiomatic that cases are not authority for propositions not considered.‖ ‘ ‖
(McWilliams v. City of Long Beach (2013) 56 Cal. 4th 613, 626; People v. Johnson
(2012) 53 Cal. 4th 519, 528.) The precedential value of Brown is limited to its
facts involving a driver‘s license suspension.
E. Evidence Code Section 1047
The department argues that, because the officers whose records Drinkwater
has requested had nothing to do with her termination, she is not entitled to
discovery. In support, the department cites Evidence Code section 1047, which
provides in part: ―Records of peace officers or custodial officers . . . who either
were not present during the arrest or had no contact with the party seeking
disclosure from the time of the arrest until the time of booking, or who were not
present at the time the conduct is alleged to have occurred within a jail facility,
shall not be subject to disclosure.‖ The department‘s reading of this statute was
rejected in Alt v. Superior Court (1999) 74 Cal. App. 4th 950. Alt reasoned that
Evidence Code section 1047 only applies if the discovery request relates to an
incident involving an arrest or its equivalent. When, as here, the discovery request
is unrelated to an arrest, Evidence Code section 1047‘s limitation does not apply.
As Alt observed, a contrary conclusion ―would largely supplant the general
discovery standards set forth in sections 1043 and 1045. [A contrary]
interpretation of section 1047 would mean that police personnel information could
be discovered only if there had been an arrest or contact between arrest and
20
booking, and in no other situation. This reading runs counter to Memro‘s[8]
observation that sections 1043 and 1045 do not limit discovery of police personnel
records to cases involving altercations between police officers and arrestees.‖
(Alt, at pp. 957-958.)
Evidence Code section 1047‘s legislative history supports Alt‘s conclusion.
The proponents of the provision urged its purpose was to deter frivolous Pitchess
requests made by criminal defendants ―as a bargaining tool to attempt to reduce
pending criminal charges‖ ―made primarily to harass the officers and supervisors
within police and sheriff‘s departments.‖ (Sen. Judiciary Com., analysis of
Assem. Bill No. 1112 (1985-1986 Reg. Sess.) July 3, 1985, p. 3.) The Senate
Judiciary Committee analysis observed: ―The bill would only pertain to cases
alleging the use of excessive force by a peace officer in connection with an arrest.
It would not apply where the person had only been detained and not arrested. [¶]
This distinction appears well founded: since the person had not been arrested
there would be no incentive to file a frivolous request.‖ (Id. at p. 4.) This analysis
expressly alerted the Legislature to the limitation recognized by Alt.
F. The Dissenting Opinion
The dissenting opinion concludes that an administrative hearing officer is
empowered to rule on a Pitchess motion, but may not compel production of
personnel records for in camera review before it rules. (Conc. & dis. opn., post, at
pp. 11-12.) It suggests that if the custodian of records voluntarily produces the
records ―with the consent of the officer whose personnel records are sought, the
matter is at an end.‖ (Id. at p. 12.) If the custodian refuses to comply, the party
8 People v. Memro (1985) 38 Cal. 3d 658, overruled on another ground in
People v. Gaines (2009) 46 Cal. 4th 172, 181, footnote 2.
21
seeking discovery may seek to have the matter referred to the superior court.
Under the dissent‘s proposal, after such a transfer, the court could then review
materials in camera to decide whether it should order discovery and make any
protective order. (Ibid.)
The dissent cites Evidence Code section 914, subdivision (b), which
provides that a person may not be held in contempt for failing to disclose
privileged information unless by order of court, and Code of Civil Procedure
section 1991, which empowers a hearing officer to report to the superior court a
witness‘s disobedience to a subpoena or refusal to answer a question and to seek a
court order compelling compliance. The dissent suggests this scheme applies to
Pitchess motions before administrative hearing officers. (See conc. & dis. opn.,
post, at pp. 13-15.)
This proposal is inconsistent with the Pitchess statutes. Most
fundamentally, under the dissent‘s view, an in camera review of personnel records
would no longer be required prior to disclosure. Under the cited scheme of Code
of Civil Procedure section 1991, the superior court would become involved only if
the custodian of records refused to comply with the disclosure order. The dissent
asserts that if the custodian voluntarily complies with the disclosure order, ―the
matter is at an end‖ without any in camera review by anyone. (Conc. & dis. opn.,
post, at p. 12.)
The Legislature could not have contemplated such a scheme because
Evidence Code section 1045 expressly provides that in camera review is
mandatory before disclosure in every case. As noted, subdivision (b) of that
provision requires an examination of the records to exclude complaints about
conduct ―occurring more than five years‖ earlier; the conclusions of any
investigating officer (in a criminal proceeding); and ―[f]acts sought to be disclosed
that are so remote as to make disclosure of little or no practical benefit.‖ (Evid.
22
Code, § 1045, subd. (b).) ―By providing that the trial court should conduct an in
camera review, the Legislature balanced the accused‘s need for disclosure of
relevant information with the law enforcement officer‘s legitimate expectation of
privacy in his or her personnel records.‖ (Mooc, supra, 26 Cal.4th at p. 1220, maj.
opn. of Werdegar, J.; see Garcia, supra, 42 Cal.4th at pp. 69-70.) Nothing in the
wording of Evidence Code section 1045 remotely suggests the custodian of
records may waive in camera review, much less conduct the required review on its
own.
Indeed, in enacting the Pitchess statutes, the Legislature amended the bill to
specifically eliminate language in earlier versions that made an in camera review
optional at the request of the officer or other person who could assert the privilege.
(See Sen. Bill No. 1436 (1977-1978 Reg. Sess.) as introduced Jan. 27, 1978, p. 3;
Sen. Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Apr. 3, 1978, p. 3; Sen.
Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Apr. 17, 1978, p. 3; Assem.
Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978, p. 3.)
Previous versions of the bill also limited discovery to the identities of
complainants and witnesses and, in some circumstances, their statements. They
also allowed officers an absolute right not to disclose any privileged information
notwithstanding a court‘s finding that it was relevant to the litigation at issue.
(See Assem. Com. on Criminal Justice, Analysis of Sen. Bill No. 1436 (1977-1978
Reg. Sess.) June 5, 1978, p. 2; Assem. Amend. to Sen. Bill No. 1436 (1977-1978
Reg. Sess.) Aug. 7, 1978, pp. 4-5.) It was in this context that legislative
committee reports provided the assurance that ―[a]ll requests for discovery of
police personnel records would require that before disclosure could be made the
judge would have to review, in camera, the records sought, to determine which if
any of them are relevant to the litigation‖ (Assem. Com. on Criminal Justice, Final
Analysis of Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 30, 1978, p. 2, italics
23
added), and ―[a]ll requests for discovery would require an in camera hearing at
which the court would determine the relevancy of the material sought‖ (Assem.
Com. on Criminal Justice, analysis of proposed amendments to Sen. Bill No. 1436
(1977-1978 Reg. Sess.) Aug. 18, 1978, p. 2, italics added, underlining omitted).
This history reflects that, in exchange for allowing broader discovery of officer
personnel records and eliminating an officer‘s absolute privilege to foreclose
discovery of his files, the Legislature considered an in camera review a pivotal and
necessary protection for officers. Thus, contrary to the dissent‘s suggestion (see
conc. & dis. opn., post, at p. 8), the focus of the reports was that an in camera
review would be conducted before disclosure, not on who would conduct the
review. The legislative history materials, like Evidence Code section 1045 itself,
largely assumed a judicial proceeding, and made no mention of any difference in
procedure between judicial and nonjudicial proceedings. If the Legislature
contemplated a difference, as the dissent posits, one would expect the extensive
legislative history would have mentioned it at least once.
The dissent asserts the Pitchess statutes ―ensur[ed] that whenever discovery
was opposed, in camera review would follow as a matter of course. ([Evid. Code,]
§ 1045, subd. (b).)‖ (Conc. & dis. opn., post, at p. 13, italics added.) But
Evidence Code section 1045, subdivision (b) says nothing about contested
motions. It requires a determination of relevance and the conduct of an in camera
review to exclude certain categories of information regardless of relevance.
Nothing in the language of the statutory scheme suggests the duty to determine
relevance may be waived by the custodian of records. The only reference to
waiver appears in Evidence Code section 1043, subdivision (c), which provides
that ―[n]o hearing upon a motion for discovery or disclosure shall be held‖ without
compliance with notice obligations, including notice to the affected officer, ―or
upon a waiver of the hearing by the governmental agency identified as having the
24
records.‖ Thus, while the custodian may waive a hearing on whether good cause
has been shown, no similar waiver provision appears regarding the duty to find
relevance under Evidence Code section 1045. (See California Highway Patrol v.
Superior Court (2000) 84 Cal. App. 4th 1010, 1016 [the trial court conducted an in
camera review even though the custodian did not oppose the Pitchess motion].)
The dissent suggests an ―unfortunate consequence‖ of our approach is that
a nonlawyer might preside over the administrative hearing and ―the nonparty
peace officer will have no input‖ into his selection. (Conc. & dis. opn., post, at p.
2.) The dissent further laments that such a person may order disclosure and
―formerly confidential records may be opened to inspection.‖ (Ibid.) These
comments find no footing in actual practice. First, a nonparty officer whose
records are sought would never have input into who would decide the Pitchess
motion, be it a court or an arbitrator. In any case, that concern is completely
unfounded here, where the custodian of records, who is obligated to assert the
privilege, and the Sheriff‘s Association, which represents the officer, are involved
in the litigation. Second, it is simply not so that officer records would be ―opened
to inspection.‖ (Conc. & dis. opn., post, at p. 2.) As noted, officer records
disclosed at these private proceedings remain confidential under Penal Code
section 832.7. (See Copley Press, supra, 39 Cal.3th at pp. 1286-1299.) Further,
the Pitchess statutes themselves restrict use of such records to the proceeding at
issue. (Evid. Code, § 1045, subd. (e); Alford, supra, 29 Cal.4th at pp. 1039-1043.)
The dissent first gleans legislative intent regarding the Pitchess statutes
from general Evidence Code provisions concerning privileges. We have already
addressed the Evidence Code argument, particularly the applicability of Evidence
Code section 915, at pages 15-16, ante.
25
Next, the dissent relies on a repealed provision of the Administrative
Procedure Act (APA) (Gov. Code, § 11340 et seq.). Government Code section
11507.6 allows parties in an APA proceeding to request various pretrial discovery
from the opposing party. Under Government Code former section 11507.7, if a
party failed to comply, the aggrieved party could ―file a verified petition to compel
discovery in the superior court . . . naming as respondent the party refusing or
failing to comply with‖ pretrial discovery obligations. (Gov. Code, former
§ 11507.7, subd. (a), added by Stats. 1968, ch. 808, § 5, p. 1562.) The court would
thereafter rule on the discovery matter, which included the power to review in
camera materials claimed to be privileged. (Gov. Code, former § 11507.7, subds.
(d), (e), added by Stats. 1968, ch. 808, § 5, p. 1563.) Pointing to this mechanism,
which existed at the time the Pitchess statutes were enacted, the dissent asserts that
―the Legislature has taken pains historically to identify and limit who may conduct
in camera review.‖ (Conc. & dis. opn., post, at p. 11.) It suggests the Legislature
had these provisions in mind when enacting the Pitchess scheme.
This reasoning misses the mark. First, the Legislature has expressly stated
that officer personnel records ―are confidential and shall not be disclosed in any
criminal or civil proceeding except by discovery pursuant to Sections 1043 and
1046 of the Evidence Code.‖ (Pen. Code, § 832.7, subd. (a), italics added.) We
have affirmed that ―[t]he Pitchess procedure is the sole and exclusive means‖ to
obtain Pitchess discovery, and cases ―have rejected attempts to use other discovery
procedures to obtain Pitchess records.‖ (City of Los Angeles v. Superior Court
(2002) 29 Cal. 4th 1, 21.) Given the Legislature‘s adoption of the Pitchess statutes
as the exclusive method for discovery of these records, it is doubtful the
Legislature contemplated that the repealed APA discovery procedure would apply.
This is especially true when neither the language nor legislative history of the
Pitchess statutes makes any reference to the APA.
26
Second, the Legislature could not have contemplated the former APA
procedure would apply to Pitchess motions in administrative hearings for the same
reasons it could not have contemplated application of Code of Civil Procedure
section 1991. Like that procedure, Government Code former section 11507.7
required an aggrieved party to file a discovery motion before the superior court
would become involved; if a party complied with the discovery request, the court
would never need to rule or view the records in camera. Again, the dissent fails to
explain why the Legislature would have expressly required an in camera review of
records before disclosure under Evidence Code section 1045, yet countenanced
application of a scheme that would have allowed disclosure of records without
such review.
Third, the motion under Government Code former section 11507.7 only
applied to discovery violations by parties. (See Gov. Code, former §§ 11507.6
[pretrial discovery obligation of parties], 11507.7, subd. (a).) By contrast,
Pitchess motions are directed at ―the governmental agency which has custody and
control of the records‖ (Evid. Code, § 1043, subd. (a)), even when the custodian is
not a party to the litigation. The Legislature could not have believed this vastly
different scheme would have any application to the Pitchess statutes.
Fourth, the Legislature‘s subsequent amendment of Government Code
former section 11507.7 presents strong evidence that the Legislature never
believed it applied to the Pitchess scheme. As the dissent acknowledges, the
Legislature in 1995, as part of a comprehensive overhaul of the APA (see
Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals
Bd. (2006) 40 Cal. 4th 1, 5), amended Government Code former section 11507.7 to
allow an administrative law judge (ALJ) to rule on discovery matters, which
included the power to examine privileged materials if necessary to make a ruling.
(See Gov. Code, § 11507.7, subd. (d).) An ALJ is a specialized arbitrator on staff
27
with the Office of Administrative Hearings, and the APA requires all hearings
under its provisions to be conducted by an ALJ. (Gov. Code, § 11502, subd. (a).)
Under the dissent‘s view, the 1995 amendment to the APA created a
distinction between ALJs and non-ALJ arbitrators. Thus, with respect to a
Pitchess motion after 1995, an ALJ now can conduct an in camera review of
records under Evidence Code section 1045, because Government Code section
11507.7 generally gives ALJs the power to review privileged materials in camera,
whereas non-ALJ arbitrators cannot. The dissent acknowledges that the
Legislature never amended the Pitchess statutes to reflect this asserted intent.
Indeed, the dissent, in attacking our interpretation of the scheme, makes much of
the fact that Evidence Code section 1045 repeatedly uses ―the court,‖ and reasons
that ―the Legislature has been precise in its choice of terminology‖ and ―[w]e
should take the Legislature at its word.‖ (Conc. & dis. opn., post, at p. 8.)
However, after 1995, and to this day, Evidence Code section 1045 still uses ―the
court,‖ making no reference to ALJs or the APA.
The dissent cannot have it both ways. If the Legislature intended that the
1995 amendment of the APA constituted a substantive modification of the
Pitchess scheme, such a change would have constituted a significant departure in
the law. Yet the dissent posits this major change resulted solely from silent
implication. It is doubtful that the Legislature would have instituted such a
significant change through silence. While the law can occasionally be subtle, we
should avoid constructions that render it delphic. Indeed, the 1995 bill constituted
a comprehensive amendment of the APA and numerous related statutes. It
amended or added over 100 different laws spanning 16 codes, including not only
provisions of the Government, Evidence, and Penal Codes, but sections of the
Health and Safety, Business and Professions, Labor, Revenue and Taxation,
Welfare and Institutions, Vehicle, Fish and Game, Financial, Education, Military
28
and Veterans, Public Resources, Public Utilities, and Unemployment Insurance
Codes as well. (See Stats. 1995, ch. 938, pp. 7104-7225.) It is difficult to believe
that the Legislature intended the amendment to the APA to change the Pitchess
statutes, yet chose not to modify them expressly as it did with respect to dozens of
other statutes tangentially related to the APA.
Responding to our discussion of Government Code former section 11507.7,
the dissent states it ―take[s] no position‖ on the interaction between the repealed
APA procedure and the Pitchess scheme because ―the issue is, after all, long since
moot.‖ (Conc. & dis. opn., post, at p. 10.) The dissent suggests we are imputing
to it a position about the applicability of the APA that it has not taken. (Id. at p.
14.) The dissent misapprehends the import of our discussion. The dissent asserts
that ―the Legislature had taken the extraordinary step of creating a special
statutory transfer mechanism to allow privilege disputes arising in administrative
matters to be resolved by the only body authorized to conduct in camera review, a
court.‖ (Id. at p. 1.) The dissent reasons that the existence of these transfer
mechanisms shows ―the Legislature took seriously the limits on the powers of
nonjudicial officers‖ (id. at p. 5), and, thus, the Legislature‘s use of ―the court‖ in
Evidence Code section 1045 meant only courts are authorized to conduct in
camera review. However, as noted, that transfer mechanisms such as Code of
Civil Procedure section 1991 and Government Code former section 11507.7 do
not fit the Pitchess procedure shows that the Legislature could not have had them
in mind when enacting the Pitchess statutes. And the fact that the Legislature did
not amend the Pitchess statutes in 1995 when granting ALJs authority to conduct
in camera review further supports our view that the Legislature did not consider
the former APA transfer mechanism when enacting the Pitchess scheme.
Rather than gleaning legislative intent from general statutes of questionable
applicability, the better view recognizes that the Legislature, by expressly allowing
29
Pitchess motions to be filed with an appropriate administrative body under
Evidence Code section 1043, contemplated administrative Pitchess motions from
the very beginning of the scheme. To conclude that administrative hearing
officers lack authority to rule on them effectively reads this language out of the
statute. If the Legislature intended to keep hearing officers from ruling on such
motions, or to require that only courts conduct the in camera review, it certainly
could have done so by providing that such motions not be filed before hearing
officers, or by expressly creating a transfer mechanism to the superior court. It did
neither. Our conclusion harmonizes the Pitchess scheme with Evidence Code
sections 914 and 915. It is consistent with Penal Code section 832.7 and our
holding that the confidentiality of officer personnel records extends to
administrative proceedings. Finally, allowing administrative hearing officers to
determine Pitchess motions in this context furthers the goals of the POBRA and
maintains the balance between an officer‘s interest in privacy and a litigant‘s
interest in discovery. Of course, the Legislature remains free to clarify its intent as
to the authority of administrative hearing officers in this context, and to take
additional steps to protect the confidentiality of officer personnel records in the
administrative context.
30
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
WILLHITE, J. *
______________________________
* Associate Justice of the Court of Appeal, Second Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
31
CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.
I agree with the majority that Pitchess1 discovery can be sought in
administrative proceedings. I disagree, however, with the further conclusion that
every nonjudicial presiding officer may review privileged and confidential
materials in the context of such a motion.
As of the 1970s, when the Pitchess discovery scheme was enacted, the
Legislature had never entrusted administrative hearing officers with reviewing
allegedly privileged and confidential documents to determine their discoverability.
Only judicial officers were permitted to examine such documents. The disparity
in authority was neither a relic of an older time nor an inadvertent oversight; as
recently as 1968, the Legislature had taken the extraordinary step of creating a
special statutory transfer mechanism to allow privilege disputes arising in
administrative matters to be resolved by the only body authorized to conduct in
camera review, a court.
The Pitchess discovery scheme continues this regime. At every turn,
Evidence Code section 1045,2 the statute governing in camera review of
confidential peace officer records, spells out what a ―court‖ should do, eschewing
the broader term ―presiding officer‖ used elsewhere to identify those powers and
1 Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess).
2 All further unlabeled statutory references are to the Evidence Code.
duties shared by both judges and administrative hearing officers. Yet the majority
concludes the Legislature in enacting the Pitchess discovery statutes not only
intended the then unprecedented step of empowering administrative officers to
conduct in camera privilege review, but took this step sub silentio, using each
directive to ―the court‖ to announce what a ―court [or any other presiding officer]‖
should do. This cannot be what the Legislature intended.
The unfortunate consequence of the majority opinion is this. Often, the
person presiding over an administrative hearing need not be a lawyer and could be
whomever the parties choose; the nonparty peace officer will have no input. On
the say-so of such a person, without judicial oversight or any guarantee of a
protective order, the peace officer‘s formerly confidential records may be opened
to inspection. Because the statutory scheme does not compel this regrettable
result, I respectfully dissent.
I.
In 1965, the Legislature first codified in one place the rules of evidence.
(Stats. 1965, ch. 299, p. 1297.) The new Evidence Code adopted largely verbatim
the work of the California Law Revision Commission (Commission), which had
been asked to study the possibility of conforming the state‘s evidence rules to a set
of nationally proposed uniform rules. (Stats. 1956, ch. 42, pp. 263, 265; see
Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision
Com. Rep. (1965) p. 3.)3
3 The Commission‘s recommendations were delivered to the Legislature,
which expressly endorsed the Commission‘s commentary as reflecting its own
intent unless otherwise noted. (Assem. Com. on Judiciary, Rep. on Assem. Bill
No. 333 (1965 Reg. Sess.) 1 Assem. J. (1965 Reg. Sess.) p. 1712; Sen. Com. on
Judiciary, Rep. on Assem. Bill No. 333 (1965 Reg. Sess.) 2 Sen. J. (1965 Reg.
Sess.) p. 1573.) Consequently, ―with respect to unchanged sections of the
Evidence Code the commission‘s comments state the intent of the Legislature
(footnote continued on next page)
2
With respect to privilege issues, the Commission recognized that questions
of privilege might arise in a broad range of proceedings and sought to ―remove the
existing uncertainty concerning the right to claim a privilege in a nonjudicial
proceeding.‖ (Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid. Code
(2009 ed.) foll. § 910, p. 217.) The policy served by privileges would be seriously
undermined if ―[e]very officer with power to issue subpoenas for investigative
purposes, every administrative agency, every local governing board, and many
more persons could pry into the protected information . . . .‖ (Id. at p. 216.)
Accordingly, the Commission proposed, and the Legislature enacted, an explicit
declaration that privilege protections would apply equally to judicial,
administrative, and other proceedings. (§§ 901, 910.)
Equally important to protecting confidentiality, the new Evidence Code
articulated procedures for how privilege claims would be resolved in nonjudicial
proceedings. In general, ―presiding officer[s],‖ broadly defined to include not
only judicial officers but also arbitrators and anyone else overseeing a nonjudicial
proceeding, could ―determine a claim of privilege in any proceeding in the same
manner as a court determines such a claim‖ under the Evidence Code. (§ 914,
subd. (a); see § 905 [defining ― ‗Presiding officer‘ ‖]; Cal. Law Revision Com.
com., 29B pt. 3A West‘s Ann. Evid. Code, supra, foll. § 905, at p. 215.)
However, the authority to determine a claim of privilege was subject to two
significant limits. First, only a ―court,‖ not just any presiding officer, could
―require the person from whom disclosure is sought or the person authorized to
(footnote continued from previous page)
regarding those sections.‖ (Arellano v. Moreno (1973) 33 Cal. App. 3d 877, 884.)
This principle applies fully to each section I discuss.
3
claim the privilege, or both, to disclose the information in chambers . . . .‖ (§ 915,
subd. (b).) The consequence of this was quite clear: the narrow authorization for
in camera review ―applies only when a court is ruling on the claim of privilege.
Thus, in view of [§ 915,] subdivision (a), disclosure of the information cannot be
required, for example, in an administrative proceeding.‖ (Cal. Law Revision Com.
com., 29B pt. 3A West‘s Ann. Evid. Code, supra, foll. § 915, at p. 256.)
Nonjudicial in camera review remained forbidden. (See ibid. [the statute‘s broad
limits on in camera review ―codif[y] existing law‖].)4
Second, recognizing the risk of error inherent in having nonjudicial officers
make privilege determinations, the Commission and Legislature withheld the
power to issue enforceable orders on privilege matters. Orders to disclose issued
by such officers carried no risk of contempt for noncompliance. (§ 914, subd. (b).)
Instead, parties seeking discovery needed a court order compelling disclosure.
(Ibid.; see Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid. Code,
supra, foll. § 914, at p. 254 [―What is contemplated is that, if a claim of privilege
is made in a nonjudicial proceeding and is overruled, application must be made to
a court for an order compelling the witness to answer.‖].) This detour to court was
necessary ―to protect persons claiming privileges in nonjudicial proceedings.
Because such proceedings are often conducted by persons untrained in law, it is
desirable to have a judicial determination of whether a person is required to
disclose information claimed to be privileged before he can be held in contempt
4 Stressing the importance of section 915‘s safeguards, the Commission
explained in camera disclosure will frequently be wholly prohibited, and even
when it is allowed, ―[s]ection 915 undertakes to give adequate protection to the
person claiming the privilege by providing that the information be disclosed in
confidence to the judge and requiring that it be kept in confidence if it is found to
be privileged.‖ (Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid.
Code, supra, foll. § 915, at p. 256.)
4
for failing to disclose such information.‖ (Cal. Law Revision Com. com., at
p. 254.)
In 1968, the Legislature codified procedures for discovery in proceedings
under the Administrative Procedure Act (APA). (Stats. 1968, ch. 808, § 3,
p. 1561; Arnett v. Dal Cielo (1996) 14 Cal. 4th 4, 21.) As discussed, at the time all
nonjudicial officers were prohibited from conducting in camera review of
assertedly privileged documents. (§ 915.) Rather than lift this prohibition, the
Legislature authorized the filing of a freestanding ―verified petition to compel
discovery in the superior court for the county in which the administrative hearing
will be held, naming as [a] respondent the party‖ refusing to provide discovery.
(Gov. Code, former § 11507.7, subd. (a), enacted by Stats. 1968, ch. 808, § 5,
p. 1562.) Former section 11507.7 expressly granted a court the authority
nonjudicial officers lacked: the power to review in camera the assertedly
privileged administrative discovery materials under the rules set out in section 915
of the Evidence Code. (Gov. Code, former § 11507.7, subd. (d); Stats. 1968, ch.
808, § 5, pp. 1562, 1563.) Plainly, the Legislature took seriously the limits on the
powers of nonjudicial officers.
This, then, was the landscape in 1978 when the Legislature enacted the
Pitchess discovery statutes. Claims of privilege could be raised in judicial and
nonjudicial settings alike. (§ 910.) Courts and nonjudicial presiding officers
could rule on these claims. (§ 914, subd. (a).) Courts had authority to rule on
claims of privilege following in camera review. (§ 915, subd. (b).) Presiding
officers, other than court judges, did not; they were required to issue rulings
without directly inspecting assertedly privileged materials. (Id., subd. (a); see
§ 905 [defining ― ‗Presiding officer‘ ‖].) Moreover, compliance with nonjudicial
privilege rulings was not inherently compulsory. (§ 914, subd. (b).) Persons
possessing assertedly privileged documents could not be required to allow
5
nonjudicial officers to examine them and could not be forced to disclose them
without review by an actual court.
The statutory scheme offered a path to resolution of any privilege dispute
by the only entity entrusted to conduct in camera review and issue binding
rulings—the court. If discovery was sought and refused on grounds of privilege in
a proceeding covered by the APA, the party seeking discovery could file a petition
in superior court under Government Code former section 11507.7 and have the
court proceed with in camera review and a determination whether disclosure
should be required. (See Gov. Code, former § 11507.7, subds. (d), (e); Stats.
1968, ch. 808, § 5, p. 1563.) In proceedings not covered by the APA, application
to a court for an order compelling discovery was also necessary. In the absence of
any more specifically applicable statutory procedure, such as Government Code
former section 11507.7, the Legislature directed parties to use ―the procedure
prescribed by Section 1991 of the Code of Civil Procedure‖ to obtain such an
order. (Evid. Code, § 914, subd. (b); see Code Civ. Proc., § 1991 [granting
superior courts jurisdiction to issue orders compelling discovery].)
II.
In Pitchess, supra, 11 Cal. 3d 531, 535–540, we recognized a right to
discovery of relevant peace officer records, subject only to a court‘s balancing
under section 1040 the interest in disclosure against the interest in confidentiality.
The Legislature responded by creating a new statutory peace officer privilege.
(Stats. 1978, ch. 630, § 5, p. 2083.) Henceforth, peace officer records were to be
deemed confidential, and were to be discoverable solely to the extent authorized
by newly enacted section 1043 et seq. (Pen. Code, § 832.7, subd. (a).)
Section 1043 explains how to obtain peace officer records discovery. (See
generally Alford v. Superior Court (2003) 29 Cal. 4th 1033, 1038–1039; City of
Santa Cruz v. Municipal Court (1989) 49 Cal. 3d 74, 82–83.) The party seeking
6
disclosure must file ―a written motion with the appropriate court or administrative
body.‖ (§ 1043, subd. (a).) Notice must be given to the custodian of records, who
will notify the party whose records are sought. (Ibid.) The motion must be
supported by evidence establishing ―good cause‖ for discovery, including a
showing that the evidence sought would be material and reason to believe the
identified government agency has records of the type sought. (Id., subd. (b)(3).)
A hearing is required absent waiver by the governmental agency with custody.
(Id., subd. (c).)
Section 1045 further authorizes a ―court‖ to determine relevance by
examining records ―in chambers in conformity with Section 915.‖ (§ 1045, subd.
(b).) The ―court‖ may exclude certain irrelevant and outdated matters (ibid.),
―make any order which justice requires to protect the officer or agency from
unnecessary annoyance, embarrassment, or oppression‖ (id., subd. (d)), and issue
protective orders (id., subd. (e)).
As an initial matter, the text plainly authorizes Pitchess discovery in
nonjudicial proceedings. Section 1043, subdivision (a) expressly allows motions
before ―administrative bod[ies],‖ and we must give this language its natural and
obvious meaning.
Nothing in the text of section 1043 or section 1045, however, relaxes the
settled limits on the power of nonjudicial officers, who may neither compel
disclosure in the face of privilege claims nor demand in camera disclosure. (See
§§ 914, subd. (b), 915, subd. (b).) Nor does anything suggest the Legislature was
any less concerned about those limits here, or intended to make the new peace
officer privilege less secure against nonjudicial abrogation than other existing
privileges. Throughout section 1045, the Legislature uses the specific term
―court,‖ not the broader term ―presiding officer,‖ to identify who is authorized to
7
conduct in camera review—a distinction that comports with what was then the
firmly established practice. We should take the Legislature at its word.
Of note, the Legislature has been precise in its choice of terminology
elsewhere in the Evidence Code and, indeed, in the very legislation at issue. (See
§§ 905 [specially defining ― ‗Presiding officer‘ ‖ to encompass all hearing officers,
as distinct from judges or courts], 914 [making distinct and differential use of the
terms ―presiding officer‖ and ―court‖], 915 [same], 1043 [referring to a ―court or
administrative body‖ (italics added)].) We should not lightly presume the
Legislature was any less precise in section 1045. If it had meant ―presiding
officer,‖ the term the majority‘s interpretation effectively reads into the statute in
place of ―court,‖ it would have said so. (Cf. § 914, subd. (a) [using the term
―presiding officer‖ to explicitly grant nonjudicial hearing officers authority to
conduct privilege hearings under § 400 et seq.].) Indeed, the commentary to
section 914 notes that express authorization for nonjudicial hearing officers to
conduct privilege hearings was ―necessary because Sections 400–406, by their
terms, apply only to determinations by a court.‖ (Cal. Law Revision Com. com.,
29B pt. 3A West‘s Ann. Evid. Code, supra, foll. § 914, at p. 254.) When the
Legislature has written a statute to extend power only to a ―court,‖ it knows that
statute does not extend power to every nonjudicial ―presiding officer.‖ And when
the Legislature intends to extend new powers to nonjudicial officers, it knows how
to do so expressly.
The legislative history supports the plain meaning of the text. The purpose
of the new statutes was to ―protect peace officer personnel records from discovery
in civil or criminal proceedings‖ (Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 1436 (1977–1978 Reg. Sess.) as amended Apr. 3, 1978, p. 1) by creating a
new privilege limiting their disclosure (id. at pp. 4–5). In committee report after
committee report, assurances were offered that peace officers could not be forced
8
to surrender this newly created privilege until a judge had reviewed materials in
camera. (E.g., id. at pp. 3–5; Assem. Com. on Criminal Justice, Analysis of Sen.
Bill No. 1436 (1977–1978 Reg. Sess.) as amended Aug. 7, 1978, p. 2; Assem.
Com. on Criminal Justice, Analysis of Sen. Bill No. 1436 (1977–1978 Reg. Sess.)
Final Analysis, pp. 1–2.)5 These guarantees mirror the recognition in connection
with section 914 that only a judicial determination could support compelled
disclosure of privileged materials. (See Cal. Law Revision Com. com., 29B pt. 3A
West‘s Ann. Evid. Code, supra, foll. § 914, at p. 254.)
That the Legislature knows how to authorize nonjudicial officers to conduct
in camera review of privileged documents, and says so expressly when that is its
intent, is further illustrated by how the Legislature later handled nonjudicial
privilege review under the APA. In 1995, in response to recommendations from
the Commission, the Legislature substantially updated and modernized the APA.
(Stats. 1995, ch. 938, p. 7104; see Department of Alcoholic Beverage Control v.
Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal. 4th 1, 8–9.) Among the
proposed changes the Legislature enacted verbatim were revisions to the act‘s
discovery provisions. Whereas under then existing law, ―discovery disputes
between the parties [were] referred to the superior court for resolution and
enforcement,‖ the Commission sought to ―expedite the discovery process‖ by
―vest[ing] resolution of discovery disputes in the administrative law judge.‖
(Recommendation: Administrative Adjudication by State Agencies (Jan. 1995) 25
5 The majority is quite right to note no special focus was placed on who
would conduct the review (maj. opn., ante, at p. 24), the reason being no special
focus was needed; the various bill analyses, like the text of section 1045, carried
forward the assumption that had always been true, that in camera review was
something done only by courts and judges. If the Legislature contemplated a
departure from that well-established practice, as the majority posits, one would
expect the legislative history to so indicate. Instead, there is only silence.
9
Cal. Law Revision Com. Rep. (1995) pp. 55, 116.) Government Code section
11507.7 was revised to allow administrative law judges to do what previously only
courts had done, including, with respect to privilege claims, authorizing for the
first time an ―administrative law judge [to] order lodged with it matters provided
in subdivision (b) of Section 915 of the Evidence Code and examine the matters in
accordance with its provisions.‖ (Gov. Code, § 11507.7, subd. (d).) This new
authority eliminated any need for a transfer mechanism to bring every APA
discovery dispute before a court; accordingly, the freestanding petition previously
authorized by section 11507.7 was eliminated. (See Gov. Code, § 11507.7, subd.
(a) [motion to compel may be filed directly with the administrative law judge].)
Curiously, the majority imputes to me the view that a Government Code
former section 11507.7 petition would necessarily have provided the mechanism
for Pitchess discovery, then refutes that asserted view at length. (Maj. opn., ante,
at pp. 25-27.) But I take no position on how a former section 11507.7 petition and
the Pitchess statutes might have interacted; the issue is, after all, long since moot.
For present purposes, the significance of Government Code former section
11507.7, and of the current version of that same statute, is simply this: when it
comes to withholding or granting in camera powers to nonjudicial hearing officers,
the Legislature has acted intentionally and explicitly. We cannot fairly assume
that uniquely, in Evidence Code section 1045, it acted inadvertently and implicitly.
Turning the interpretive question on its head, the majority asks whether
section 1045 contains a limit on who may act. The majority argues that section
1045 at most ―implicitly‖ withholds from nonjudicial hearing officers the power to
conduct in camera review (maj. opn., ante, at p. 7, italics omitted), and references
to ― ‗the court‘ ‖ in that statute should not be read ―as a coded expression of
legislative intent to substantively limit who may rule on Pitchess motions‖ (maj.
opn., ante, at p. 15). But there is nothing implicit or coded about the statute. Its
10
designation of who may conduct in camera review and issue appropriate protective
and other orders is explicit and plain: ―the court.‖ (§ 1045, subds. (b), (c), (d),
(e).) When the Legislature intends a grant of authority to a broader group, it has
available, and uses, a different and more encompassing term: ―presiding officer.‖
(See §§ 905, 913–916, 919.) More fundamentally, the issue here is not whether
section 1045 contains a limit on who may act. Rather, given that until 1995, when
the Legislature amended the APA, only a judicial officer had the express power to
conduct in camera review, the relevant inquiry ought to be whether section 1045
contains an unprecedented affirmative grant of such authority to a nonjudicial
officer. By its terms, the statute does not.
The Legislature has taken pains historically to identify and limit who may
conduct in camera review. Nothing in the text or history of the Pitchess discovery
statutes authorizes us to undo that effort. We should honor the language the
Legislature has chosen by giving it effect.
III.
If, as I conclude, section 1043 allows administrative discovery but section
1045 does not authorize administrative in camera review, the further question is
how the statutory scheme, correctly applied, would operate here.
As noted, this dispute arises in a non-APA proceeding; no administrative
law judge is involved, and nonjudicial officers other than administrative law
judges have no power to issue protective orders, nor any authority to conduct in
camera review. (§ 915, subd. (b); cf. Gov. Code, §§ 11511.5, subds. (b)(7), (e),
11507.7, subd. (d).) Section 1043, subdivision (c), however, authorizes any
administrative body presented with a peace officer records discovery motion to
conduct a hearing. At that hearing, the nonjudicial presiding officer may consider
the arguments and evidence in favor of and against whether the requested
information is material and likely to be possessed by the identified custodian of
11
records, and may rule on whether a showing has been made to warrant discovery.
(See § 1043, subd. (b)(3).) Although the nonjudicial officer may not order in
camera disclosure to assist in this determination (see § 915, subd. (b)), this is
hardly unusual; the Evidence Code has always called on nonjudicial presiding
officers to rule on privilege matters without examining the assertedly privileged
documents (§§ 914, subd. (a), 915; see Southern Cal. Gas Co. v. Public Utilities
Com. (1990) 50 Cal. 3d 31, 45, fn. 19). Privilege determinations nevertheless can
be rendered based on all other available evidence. (See United States v. Reynolds
(1953) 345 U.S. 1, 8–11; Costco Wholesale Corp. v. Superior Court (2009) 47
Cal. 4th 725, 737.)
As has also always been the case, a nonjudicial order directing discovery is
not self-executing. If the custodian of records voluntarily complies, with the
consent of the officer whose personnel records are sought, the matter is at an end.
If the custodian does not comply, or the party seeking discovery believes
compliance has been only partial, no immediate sanction is available, but the party
requesting discovery may seek referral of the matter to the superior court in the
county where the administrative proceeding is ongoing. (§ 914, subd. (b); Code
Civ. Proc., § 1991.) At this point, the provisions of Evidence Code section 1045
come into play; a court asked to enforce a nonjudicial order for section 1043
Pitchess discovery can review materials in camera to decide whether to issue a
court order directing discovery, as well as a protective order (§ 1045, subd. (e)) or
any other order ―which justice requires‖ (id., subd. (d)).
The majority criticizes this view of the governing statutes as permitting
compelled discovery without in camera review, as required by section 1045. To
the contrary, unlike the majority construction, this view ensures in camera review,
in all cases where discovery is contested, by the entity authorized to do such
review—―the court.‖ Nothing in the statutory text or history supports the view the
12
Legislature intended the contemplated protections to apply even in the rare
hypothetical instance where a privilege holder might have no objection and waive
the privilege.
To support its view that ―shall examine‖ in section 1045 means ―shall
examine‖ even when the privilege is waived and disclosure uncontested, the
majority points to earlier unenacted versions of the Pitchess discovery legislation
that made in camera review optional by placing a burden on the privilege holder to
affirmatively seek in camera review. (Maj. opn., ante, at pp. 23-24; e.g., Assem.
Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978, p. 3 [―In
determining relevance, the court shall, at the request of any person authorized to
claim the privilege, examine the information in chambers in conformity with
Section 915 . . .‖].) The enacted version lifted that burden, ensuring that whenever
discovery was opposed, in camera review would follow as a matter of course.
(§ 1045, subd. (b).) To interpret this change as also compelling review in
uncontested cases, and the new privilege as unwaivable even by the holder, lacks
any basis.
The majority also would find no statute currently authorizes transfer of a
discovery dispute from a nonjudicial setting to a judicial setting, and in the
absence of such a mechanism would read broad new powers for nonjudicial
officers into section 1045. Given a choice between disregarding the plain text of
section 1045, on the one hand, and reading section 914, subdivision (b) and Code
of Civil Procedure section 1991 as collectively allowing a court to act on
discovery disputes arising before nonjudicial officers, on the other, I would choose
the latter course, the one that gives effect to the text of each relevant statute and
accords with the Legislature‘s long-standing desire ―to protect persons claiming
privileges in nonjudicial proceedings‖ from having to surrender those privileges at
the sole behest of nonjudicial officers. (Cal. Law Revision Com. com., 29B pt. 3A
13
West‘s Ann. Evid. Code, supra, foll. § 914, at p. 254.) Far from reading Pitchess
discovery in administrative hearings out of section 1043, this approach embraces
such discovery. Moreover, unlike the majority‘s approach, it does so without also
sacrificing equally significant protections for privileged information expressly
codified in the in camera review provisions of section 1045.
Here, the majority again imputes to me, and then refutes, a position I do not
assert in connection with a scenario not before us: that if this were an APA
proceeding, the appropriate course necessarily would be to seek discovery under
Government Code section 11507.7, rather than under Code of Civil Procedure
section 1991. (See maj. opn., ante, at p. 27 [first imputing this imagined view and
then using it to claim ―[t]he dissent cannot have it both ways‖].) Because this case
does not involve the APA, neither I nor the majority need sort out which would be
the correct course in such a proceeding. Concerning the non-APA proceeding that
is before us, and the demonstration that Pitchess discovery can be had without
violating the general rule against nonjudicial in camera review, the majority is
largely silent.
14
IV.
Applying the foregoing framework to the instant case, I agree with the
majority and the Court of Appeal that former Deputy Kristy Drinkwater can seek
Pitchess materials through a motion filed with the nonjudicial hearing officer
reviewing her termination. I cannot agree that the nonjudicial officer has authority
to demand their production for in camera review. To so hold unjustifiedly
eviscerates the protections in sections 914, 915, and 1045 that ensure judicial
officers, and judicial officers alone, will conduct privilege review. Instead, any
determination that good cause for discovery has been shown should be followed,
in the absence of voluntary compliance, by a request for a court order enforcing
discovery under section 914, subdivision (b), and Code of Civil Procedure section
1991.
I respectfully dissent.
WERDEGAR, J.
I CONCUR:
BAXTER, J.
15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Riverside County Sheriff‘s Department v. Stiglitz
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 209 Cal. App. 4th 883
Rehearing Granted
__________________________________________________________________________________
Opinion No. S206350
Date Filed: December 1, 2014
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Mac R. Fisher
__________________________________________________________________________________
Counsel:
Hayes & Cunningham, Dennis J. Hayes, Adam E. Chaikin and Amanda K. Hansen for Intervener and Appellant.
Stone Busailah, Michael P. Stone, Muna Busailah, Melanie C. Smith, Robert Rabe and Travis M. Poteat for Real
Party in Interest and Appellant and Real Party in Interest and Respondent.
Lackie, Dammeier & McGill and Michael A. Morguess for Peace Officers‘ Research Association of California
Legal Defense Fund as Amicus Curiae on behalf of Intervener and Appellant, Real Party in Interest and Appellant
and Real Party in Interest and Respondent.
Silver, Hadden, Silver, Wexler & Levine, Richard A. Levine, Brian P. Ross and Michael Simidjian for Los Angeles
Police Protective League as Amicus Curiae on behalf of Intervener and Appellant, Real Party in Interest and
Appellant and Real Party in Interest and Respondent.
Green & Shinee, Richard A. Shinee and Helen L. Schwab for Association for Los Angles Deputy Sheriffs as
Amicus Curiae on behalf of Intervener and Appellant, Real Party in Interest and Appellant and Real Party in Interest
and Respondent.
Law Office of James E. Trott and James E. Trott for Association of Orange County Deputy Sheriffs, Long Beach
Police Officers Association and Southern California Alliance of Law Enforcement as Amici Curiae on behalf of
Intervener and Appellant, Real Party in Interest and Appellant and Real Party in Interest and Respondent.
Ferguson, Praet & Sherman, Jon F. Hamilton, Kimberly A. Wah and Bruce D. Praet for Plaintiff and Respondent.
Kathleen Bales-Lange, County Counsel (Tulare) and Crystal E. Sullivan, Deputy County Counsel, for California
State Association of Counties and California League of Cities as Amici Curiae on behalf of Plaintiff and
Respondent.
Jones & Mayer, Martin J. Mayer, Gregory P. Palmer and Krista MacNevin Jee for California State Sheriffs‘
Association as Amicus Curiae on behalf of Plaintiff and Respondent.
No appearance for Defendant and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael P. Stone
Stone Busailah
200 East Del Mar Boulevard, Suite 350
Pasadena, CA 91105
(626) 683-5600
Bruce D. Praet
Ferguson, Praet & Sherman
1631 E. 18th Street
Santa Ana, CA 92705-7101
(714) 953-5300
2