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.
1
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
3 grant the motion to quash.
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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
12 when a grand
jury
seeks records of a public agency to which t has been given express statutory
13 access
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)
65
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
31
(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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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
8
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
10 and addresses of each person to whom notice was mailed is as follows:
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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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