Judge Villarreal Decision (m131242) 03-24-15

8/9/2019 Judge Villarreal Decision (m131242) 03-24-15

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF MONTEREY

TERESA A. RIS

CLERKOFTHE SUPER

c s a H y ~ l : : ~

Case No.: Ml31242

4 City of Carmel-by-the-Sea,

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Plaintiff/Petitioner,

Decision

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vs.

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2014-15 Monterey County Civil Grand Jury,

8 Defendant/Respondent

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Matter came

on

for a hearing on Petitioner s Motion to Quash Subpeona

on

March 18,

2015. The Court took the matter under submission and after considering oral arguments, the

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court now rules as follows:

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The Monterey County Grand Jury (Grand Jury) issued a subpoena duces tecum seeking

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production

of

certain personnel records for ten current or former employees

of

the City

of

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Carmel (City). The City filed a petition to quash the subpoena

on

the grounds that it violates the

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privacy rights of the employees and that the subpoena is not authorized by statute.

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The Grand Jury relies on PC § 925a for its claim that the sought-after personnel records

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are subject to its subpoena power. That section provides:

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The grand jury may at any time examine the books and records

of

any incorporated

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city in the county. In addition to any other investigatory powers granted by this

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chapter, the grand jury may investigate and report upon the operations, accounts, and

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records of the officers, departments, functions, and the method or system of performing

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1 the duties of any such city and make such recommendations as it may deem proper

2 and fit.

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4 On its face, § 925a authorizes the Grand Jury to examine City books and records without

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qualification. A close

look

at § 925a is instructive. The first sentence states that the grand jury

6 may at any time examine the books and records of any incorporated city or joint powers agency

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located in the county.

The

second sentence does not expressly limit this authority. Rather, it

8 clarifies that [i]n addition t any other investigatory powers granted

by

this chapter, the grand

9 jury

may investigate and report upon the operations, accounts, and records

of

the officers,

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departments, functions, and the method or system of performing the duties of any such city or

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joint

powers agency and

make such recommendations

as it

may

deem proper and fit. (Emphasis

12 added.) The sentences serve conceptually different functions. The first sentence grants the right

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to examine books and records. The second sentence relates to the grand jury's authority to

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investigate and report and make such recommendations as it may deem proper and fit.

15 Interpreting the first sentence of§ 925a to authorize access to City books and records does not

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render the second sentence useless. The grand jury may examine books and records, subject to

17 the investigatory purposes authorized by the relevant chapter and by the remaining text of§

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925a.

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2 This does not end the analysis. The City

of

Carmel is correct that

if

the employees are

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determined to have a right to informational privacy under the California Constitution, Penal

22 Code sect 925a must be examined in light of these Constitutional rights.

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t is significant that the right to privacy in the California Constitution is explicit. Voters

adopted the right of privacy specifically because of concerns about governmental gathering and

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use

of

personal information. As the Supreme Court noted

in

examining the election brochure

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statement provided to voters that adopted the privacy amendment:

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Several important points emerge from this election brochure argument, a statement

which represents,

in

essence, the only legislative history

of

the constitutional

amendment available to us. First, the statement identifies the principal mischiefs at

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which the amendment is directed:

I)

government snooping and the secret gathering

of

personal information; (2) the overbroad collection and retention ofurmecessary personal

information by government and business interests; (3) the improper use

of

information

properly obtained for a specific purpose, for example, the use

of

it

for another purpose or

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the disclosure

of

it to some third party; and (4) the lack

of

a reasonable check

on

the

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accuracy of existing records. Second, the statement makes clear that the amendment does

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not purport to prohibit all incursion into individual privacy but rather that any such

intervention must be justified by a compelling interest. Third, the statement indicates tha

the amendment is intended to be self-executing, i.e., that the constitutional provision, in

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itself, creates a legal and enforceable right

of

privacy for every Californian.

White v

Davis

(1975)

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Cal.3d 757, 775.)

The City's personnel files have documents relating to past employment,

job

performance

reports, disciplinary actions, references, and recommendations. Psychological information and

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comments on attitude may lso be in the files, according to the City.

The court concludes that City employee personnel records are protected by the

constitutional right to privacy. Cal Const. Art.

I

sect.

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The expectation

of

privacy is

reasonable. The court further finds that the disclosure would constitute an invasion

of

privacy

sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an

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egregious breach of the social norms underlying the privacy right. Hill vs NCAA (1994) 7 Cal.

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h at p.37. The personnel records often City employees not to mention any other innocent

3 third parties identified in such records, in, for example, records

of

sexual harassment claims that

4 the victims might reasonably wish not to be disclosed - are sufficiently serious to satisfy this

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standard. Further the fact that the Grand Jury is charged with maintaining the confidentiality

of

6 its proceedings is insufficient to override the employees' privacy rights. The issue is not only the

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of

disclosure to third parties, but the disclosure to anyone including the Grand Jury. The

8 constitutional right to privacy was adopted specifically because

of

concerns about government

9 overreach into personal information.

White vs Davis

(1975) 13 Cal.3d 757,775.)

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Again, the analysis does not stop here.

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13 While privacy concerns are significant, they are not absolute. The diverse character

of

14 the privacy right requires that privacy interests be carefully compared with competing interests i

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a balancing test.

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Invasion of a privacy interest is not a violation of the state constitutional right to privacy

if

the invasion is justified by a competing interest. Legitimate interests derive from the

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legally authorized and socially beneficial activities

of

government and private entities.

Their relative importance is determined by their proximity to the central functions

of

a

particular public or private enterprise. Conduct alleged to be an invasion

of

privacy is to

be evaluated based on the extent to which it furthers legitimate and important competing

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interest.

Hill vs. NCAA

(1994) 7 Cal4

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The City of Carmel urges the court to undertake this balancing test. The City further

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argues that since the Grand Jury has made no showing

of

need -whatsoever - the court should

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The Grand Jury argues that any balancing test must be limited to the plain duty

of

the

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Grand Jury to investigate, as set forth in Section 925a, against the privacy rights of the City

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employees. The Grand Jury argues that the court can look no further.

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8 Both sides urge the court to look to

City o Woodlake vs Tulare County Grand Jury

9 (2011) 197 Cal.App.4th 1293. Woodlake examined whether the grand jury is required to comply

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with Code

of

Civil Procedure Section 1985, and provide the recipient

of

the subpoena with a

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supporting affidavit

of

good cause' when seeking officer records. The court concluded that

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jury

seeks records of a public agency to which t has been given express statutory

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its demand for records does not need to comply with CCP 1985. As such, a supporting

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declaration is

not

required.

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Woodlake

is not helpful to the court. In

City o Woodlake vs Tulare County Grand Jury

supra

197 Cal.App.4th 1293, the grand jury sought to investigate a police shooting range

accident. The grand jury issued a subpoena duces tecum to the police department to present

documents. These documents included shooting range rules, course layout, certification of the

range master, the internal investigation report of the incident, and the training schedule of the

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police officers. While the subpoena duces tecum did not seek the kind of personnel records

sought

in

this case,

Woodlake

addressed the privacy issues

of

the police personnel records.

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Penal Code section 832.7 expressly provides that its designation of confidentiality of

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peace officer personnel records shall not apply to investigation or proceedings

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concerning the conduct of peace officers ... conducted by a grand jury . City

o

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Woodlake supra, 197 Cal.App.

4th

1293, at 1303.

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The court in Woodlake did not need to balance the rights

ofthe

grand jury against those

of

the officers.

It

had only to rely upon Penal Code section 832.7 to resolve the question.

The Grand Jury

in

this case seeks municipal employee records. Unlike the situation in

Woodlake there is no statute which explicitly allows the Grand Jury to review the City's

employee personnel records.

The court looks to

People vs Superior Court o Tulare County

(2003) 107 Cal.App.4th

488, for guidance where there are interests beyond those

of

the Grand Jury.

n People vs Superior Court (supra) 107 Cal.App.4'h 488, at pp. 493-494, the court held

that the grand jury would not be allowed to obtain confidential juvenile court records, because

the grand jury did not show cause. In People vs Superior Court the court had to consider the

requirements

of

Welfare and Institutions Code sect. 827, which requires a court order to access

juvenile court records, except in certain circumstances. In spite of this legislative requirement to

show cause, the grand jury did not support its request for records with any showing at all.

Instead, the grand jury argued there is a public interest in the unfettered investigative powers of

the grand jury which overrides the public 's lesser interest in the confidentiality of uvenile

records .

People vs Superior Court

at p. 493. Without a showing

of

cause, the trial court had

no ability to balance the confidentiality interests

of

the juvenile with the interests

of

the grand

jury acting in its public watchdog function. The court denied the subpoena.

Similarly in this case, the court can only balance the competing interests of the City

employees' privacy rights and the Grand Jury's duty to investigate

if

the Grand Jury makes a

showing

of

cause.

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I The appellate courts have allowed trial judges the authority to develop rules of discovery

2 in other areas of the law in the absence oflegislation. The landmark case, Pitchess

vs

Superior

3 Court

(1974)

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Cal. 3 d 531, stated that (l)egislative silence

on

criminal discovery ... means

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that it has left to the courts the adaptation of common law concepts.

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In Shively

v

Stewart (1966)

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Cal. 2d 475, Justice Traynor wrote that legislative silence

with respect to discovery in an administrative setting required the court to augment procedures

with common law rules to permit and regulate the use of agency subpoena power to secure

discovery.

(T)he law determining the adequacy of administrative hearing in mostly judge-made

law .. ' and 'the standards are essentially the same whether judges are giving content to

due process, whether they are giving meaning to inexplicit statutory provision, or whethe

they are developing the common law'.

Shively v Stewart

(1966)

65

Cal. 2d 475, at 479.

In

Hill vs Superior Court

(1974)

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Cal.3'd 812, 817 the Court held that the trial court

has inherent power to manage discovery in a criminal case, in the interests of ustice. In Ballard

vs Superior Court

(1966) 64 Cal.2d 159, the court denied discovery

in

the absence

of

a

plausible justification. In Joe

Z vs

Superior Court (1970) 3 Cal.3'd 797, 804, the Supreme

Court held the trial court retains wide discretion to protect against the disclosure of information

which might violate some legitimate goverrnnental interest.

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Based on the foregoing, the court concludes it must balance the constitutional privacy

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of

the City employees against the right

of

the Grand Jury to investigate. To do so, this

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court will order the Grand Jury to provide an

in

camera showing of cause.

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Order

The Grand Jury must provide an

in camera

showing

of

cause. This showing must be

filed with the court under seal. The court recognizes the Grand Jury has a strong interest in

maintaining the secrecy of the nature of its investigation. One of the halhnarks of the grand jury

is that its deliberations are shrouded in secrecy. Packer

v

Superior Court (2011)

201

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Cal.App.4th 152, 17; City ofWoodlake 197 Cal.App.4th at p 1304.

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8 Protective Order

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After the

in

camera review, should the court order the production of documents, the

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parties shall prepare and sign a Protective Order ensuring that the records are returned to the City

at the close of the investigation and any copies should be destroyed. In ordering a Protective

Order, the court does not impugn the integrity

of

the jurors. Protective orders are routinely given

in the context

of

confidential or private materials.

15 Request for Judicial Notice

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Respondent's Request for Judicial Notice is granted in its entirety. The legislative

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counsel's digest is cognizable legislative history for purposes

of

judicial notice.

Kaufman

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Broad Communities

Inc

v Performance Plastering Inc. (2005)

133

Cal.App.4th 26, 35 (citing

cases.) The same is true ofprior versions of the bills. d at

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(citing cases).

Procedure

The court will treat this as a stand-alone

petition

a freestanding motion to quash the

grand jury subpoena. This is because: [a]n investigation by the grand

jury is

not a civil

proceeding for purposes

of

the statutory framework for discovery in civil proceedings. The grand

jury

is not adjudicatory, and it does not provide relief to parties who appear before it, which are

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I the fundamental elements

of

a civil proceeding.

Woodlake,

197 Cal.App.4th at 1300. As this is

2 not a civil proceeding, treating the petition

as

one for writ ofmandate or prohibition, or

as

an

3 action for declaratory relief would be inappropriate. Instead, the current petition is justified by

4 the fact that the grand jury operates under the general supervision

of

the courts and is deemed to

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be a judicial body or an instrumentality of the courts.

McClatchy Newspapers

vs

Superior Cour

6 1988)

44 Cal.3d 1162;

Dustin v Superior Court

(2002) 99 Cal.App.4th 1311.) It is, broadly

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speaking, an integral part of the court system, subject to the court's general supervision.

8 People v Superior Court 1973 Grand Jury)

(1975)

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Cal.

d

430, 439.)

Woodlake, supra.

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197 Cal.App.4th at p. 1300.

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Dated:

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MAR 4 2 15

Lydia M

Villarreal

HON. LYDIA

M

VILLARREAL

Judge of the Superior Court

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1

CERTIFIC TE

O

M ILING

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(Code of Civil Procedure Section 1013a)

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4 I do hereby certify that I am employed in the County of Monterey. I am over the age of eighteen years an

not a party to the within stated cause. I placed true and correct copies of the Decision for collection and

6 mailiog this date followiog our ordinary business practices. I am readily familiar with the Court s

7 practices for collection and processing correspondence for mailing.

On

the same day that correspondence

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is

placed for collection and mailing, it

is

deposited io the ordinary course of business with the United

9 States Postal Services in Salinas, California, in a sealed envelope with postage fully prepaid. The names

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Donald Freeman, Esq.

Perry Freeman

12 PO Box 805

Carmel, CA 93921-0805

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Leslie

J

Gerard

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Chief Assistant County Counsel

County of Monterey

15 168

West Alisal Street, Third Floor

Salinas, CA 93901-2653

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MAR 2 4 2 15

ated:

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Teresa A. Risi, Clerk of the Superior Court,

_a_H_c_y_L_o_p_e_z_ Deputy Clerk

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Documents

Judge Villarreal Decision (m131242) 03-24-15