respondent's points and authorities in opposition to petition to quash subpoena duces tecum
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CHARLES J. McKEE,
SBN
152458
County Counsel
LESLIE
J
GIRARD, SBN 098986
Chief
Assistant County Counsel
County
of
Monterey
168 West Alisal Street, Third Floor
Salinas, California 93 901-2653
Telephone: (831) 755-5045
Facsimile: (831) 755-5283
Attorneys for Respondent
2014-2015
MONTEREY
COUNTY CIVIL GRAND
JURY
SUPERIOR COURT OF CALIFORNIA
COUNTY
OF MONTEREY
CITY OF CARMEL-BY-THE-SEA,
Petitioner,
v.
2014-2015 MONTEREY
COUNTY CIVIL
GRAND JURY,
Respondent.
Case No. Ml31242
RESPONDENT S
POINTS
AND
AUTHORITIES
IN
OPPOSITION TO
PETITION TO QUASH SUBPOENA
DUCES
TECUM
Date:
March
19, 2015
Time:
8:30a.m.
Dept: To be determined
Judge: To
be
determined
Date Petition filed: March 10, 2015
Trial Date:
N/A
City ofCarmel By The Sea
v
2014 2015 Monterey County Civil Grand Jury
Respondent s Points and Authorities hi Oppositioino-Petitiml
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People v Superior Court
of
Santa Barbara County ( 1973 Grand Jury'')
13
Cal. 3d 430 (1975) .......................................................................................................... 4
People v Woodhead
43 Cal. 3d 1002 (1987) ........................................................................................................ 3
Valley Bank
of
Nevada v Superior Court
15 Cal. 3d 652 (1975) ....................................... · ................................................................10
STATUTES
Penal Code Section
922
....................................................................................................... 7
Penal Code Section 925a ........................................................................................... passiln
Penal Code Section
929
.....................................................................................................
12
Government Code Section 3060 .......................................................................................... 7
Government Code Section 6254c ................ : ................................................................9 10
Government Code Section 6506 .......................................................................................... 5
28
City ofCarmel-By-The-Sea v 2014 2015 Monterey County Civil Grand Jury
Respondent s-Points and Authorities
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1 INTRODUCTION
2 Respondent, the
2014
2015 Monterey County Civil Grand Jury ( Grand Jury ),
3 pursuant to its investigatory authority under Section 925a of the California Penal Code
1
has
4 initiated
an
investigation into ce1iain matters regarding the City
of
Carmel-by-the-Sea ( City ).
5 The Grand Jury has subpoenaed ce1iain records from the City ( Records ), and this petition is
6 brought to quash the subpoena. The Grand Jury is, without qualification, entitled to production
7 of the requested Records; the petition should be denied and the City compelled to comply with
8 the Subpoena forthwith.
9 STATEMENT OF THE FACTS
10 The Grand Jury is a duly constituted and impaneled civil grand jury for the County of
11
Monterey. Declaration
of
Brandon Hill ( Declaration ) at page 1, paragraph 2. The Grand Jury
12 has initiated an investigation into ce1iain matters involving the City. Declaration at page 2,
13
paragraph 3. The Grand Jury believes that the City is in possession ofRecords relevant to its
14 investigation and has subpoenaed those Records, which, generally speaking, are employment
15 records
of
certain identified current and former City officials and employees? Declaration at
16 page 2, paragraphs
4 6 .
The Subpoena called for either the production
of
the Records to the
17 Grand Jury, or, in the alternative, that the Records be made available to the Grand Jury for
18 review and inspection at a private room located at the City.
3
Declaration at page 2 paragraph 7.
19
The Grand Jury is not interested
in
certain personal information such
as
social security numbers
20 or personal medical information, and the Subpoena made that clear. Declaration at page 2,
21 paragraph 8. The City did not either produce the Records or make them available for inspection
22 and review on the date called for in the Subpoena. Declaration at page 2, paragraph 9.
23
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25
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27
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1
Unless otherwise indicated, all references are to the California Penal Code.
2
The Grand Jury is informed that the subpoena has been provided under seal to the Court in
order to protect the secrecy of the Grand Jury 's proceedings.
3
Although not explicitly stated, the inference is that the review would take place without City
personnel present.
City
of
Carmel By The Sea v 2014 2015 Monterey County Civil Grand Uly
Case No. M131242
Respondent s POinls
a n d ~ U t h O r i t l e s itYOpposition-tcfPetition
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1 The term of the Grand Jury ends on June 30, 2015. Declaration at page 2, paragraph 10
2
In
order to finish its investigation into the matter involving the City, and consider whether to
3 complete a report regarding the matter prior to the conclusion of its term, the Grand Jury needs to
4 either have the documents produced or made available for inspection and review immediately.
5 Declaration at page 3, paragraph 12
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Each member
of
the Grand Jury has taken an oath, administered by the Presiding Judge
of
the Superior Court, that mirrors the obligations imposed on the Grand Jury under the Penal
Code:
I do solemnly swear (affirm) that I will support the constitutions of the
United States and the State
of
California, and all laws made pursuant to and in
conformity therewith, and that I will diligently inquire into, and true presentment
make, of all matters presented to the civil grand jury of this county, of which the
civil grand
jury
shall have jurisdiction.
Fmiher, I will not disclose any information or evidence brought before the
civil grand iury, nor anything which I or any other grand juror may say, nor the
manner in which I or any other grand juror may vote on any matter before the
civil grand jury. I will keep the charge given to me by the court.
Declaration at pages 2 3, paragraph 11 and Exhibit B thereto (emphasis added).
STATEMENT OF THE CASE
California law does not specifically provide for a procedure by which a recipient of a
subpoena duces tecum or other request for records from a civil grand jury may challenge the
subpoena or request. While a grand jury need not rely upon a formal subpoena duces tecum, nor
need comply with the requirements
of
Code
of
Civil Procedure section 1985 or other procedural
requirements for the issuance
of
a subpoena duces tecum City ofWoodlake
v
Tulare County
Grand Jury, 197 Cal. App. 4th 1293, 1299 1301 (2011); MB. v Superior Court, 103 Cal. App.
4th 1384 (2002)), the Grand Jury here has chosen to ask the Superior Court to formally issue a
subpoena. Unlike normal civil cases, however, there is no pending case pursuant to which a
2
City ofCarmel-By-The-Sea
v 2014 2015
Monterey County Civil
GrandJwy
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1 motion to quash may be brought.
Cf MB.
v.
Superior Court
at 1395 (grand jury subpoena
2 different from subpoena issued in a criminal case).
3 Taking a cue from
City
of
Woodlake
the parties have requested this court to consider a
4 stand-alone petition to quash the subpoena as the appropriate vehicle to consider these issues. In
5
City of Woodlake
the pmiies from whom production was sought had filed various causes
of
6 action seeking to quash production. 197 Cal. App. 4th at 1298 1299. The matter was treated
7 by the trial court
as
a motion to quash and the appellate court considered the decision on the
8 motion a final order from which an appeal would lie.
d.
Here, should the court need to place
9 the petition in the context of a proceeding specifically recognized under California procedure, the
1 comi could consider the petition one for a writ
of
mandate seeking to compel the Grand Jury to
11
withdraw its subpoena, a writ
of
prohibition compelling the City to not respond, or even an
12 action for declaratory relief that the City need not comply.
13
ARGUMENT
14
I.
RULES OF STATUTORY CONSTRUCTION
15 This case largely involves the interpretation and application of statutes. With respect to
the interpretation
of
statutes, the analysis starts from the fundamental premise that the objective
of statutory interpretation is to ascetiain and effectuate legislative intent. . . . In determining
intent [a comi should] look first to the words themselves. . . . When the language is clear and
unambiguous, there is no need for construction. . . . When the language is susceptible of more
than one reasonable interpretation, however, [the comi will] look to a variety
of
extrinsic aids,
including the ostensible objects to be achieved, the evils to be remedied, the legislative history,
public policy, contemporaneous administrative construction, and the statutory scheme ofwhich
the statute is a pmi.
Golden State Homebuilding Associates
v.
City
of
Modesto
26 Cal. App.
4th 601, 608 (1994), citing People
v.
Woodhead
43
Cal. 3d 1002, 1007-1008 (1987). The
provisions must be given a reasonable and common sense interpretation consistent with the
apparent purpose and intention of the lawmakers, practical rather than technical in nature, which
upon application will result in wise policy rather than mischief or absurdity. d., citing
3
City
of
Carmel-By-The-Sea
v. 2014 2015
Monterey County Civil Grand Jury
-Respondent s
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1 In this particular matter, relating to an investigation of an incorporated city within the
2 county, the powers of the Grand Jury arise from Section 925a which states in its entirety:
3 The grand jury may at any time examine the books and records of any
4 incorporated city or joint powers agency located in the county. In addition to any
5 other investigatory powers granted by this chapter, the grand jury may investigate
6 and report upon the operations, accounts,
and
records
of
the officers, departments,
7 functions, and the method or system
of
performing the duties
of
any such city or
8 joint powers agency and make such recommendations
as
it may deem proper and
9 fit.
10 The grand jury may investigate and report upon the needs
of
all joint
11
powers agencies in the county, including the abolition or creation
of
agencies and
12
the equipment for or the method or system
of
performing the duties
of
the
13 several agencies.
t
shall cause a copy of any such report to be transmitted to the
14 governing body
of
any affected agency.
15
As used in this section, joint powers agency means an agency described
16 in Section 6506 of the Government Code whose jurisdiction encompasses all or
17
part
of
a county.
18
III.
19
THE GRAND W Y IS ENTITLED TO THE RECORDS
A
The Grand Jury Need Not Notify The Affected Employees
20 The City criticizes the Grand Jury for failing to notify the employees of the Subpoena.
21 The law is clear, however, that a grand jury need not follow the ordinary procedural
22 requirements for a subpoena duces tecum, including the necessity
of
an affidavit
or
notice
to
23
consumers that is required by Code
of
Civil Procedure section 1985.
City
of
Woodlake
197 Cal.
24 App. 4th at
1301
1302;
M B v Superior Court 103
Cal. App. 4th at
1391 1396.
4
In
25
26
27
28
4
The City has included in its proof
of
service persons representing the interests of some
of
the
affected employees. Although not parties hereto,
as
a courtesy the Grand Jury will serve its
responding papers on those same persons.
5
City
of
Carmel-By-The-Sea v 2014 2015 Monterey County Civil Grand Jwy
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addition, while the affected employees may have a privacy interest in their personnel records, the
law is also clear that such records are the property of the City, and thus subject to the
independent Grand Jury's authority under Section 925a.
Board ofTrustees
v.
Leach
258 Cal.
App. at 288.
5
B
The Authority OfThe Grand Jury To Review Records OfThe City Is
ot
Limited
To Records Of Officers But Extends To Any Records
The City argues that the ability
of
the Grand Jury to review records is limited to records
of
an officer
of
the City, that none
of
the employees for which records were requested are
officers , and therefore the Grand Jury is not entitled to review them. The argument has no
merit and the Grand Jury is entitled to review the records of the City on any matter.
As mentioned above, the authority of a grand jury to investigate matters involving a city
is set forth in Section 925a. The language
of
the first sentence of Section 925a is clear: The
grand jury may at any time examine the books and records of any incorporated city or joint
powers agency located
in
the County. The Grand Jury submits that this unambiguous language
needs no interpretation or construction. The City is an inc_orporated city within the County of
Monterey
6
and has Records that are relevant to the Grand Jury's investigation, and the Grand
Jury is entitled at any time to examine those Records.
The City argues that the first sentence of the section is qualified by the second, which
in
its entirety reads as follows: In addition to any other investigatory powers granted
by
this
chapter, the grand jury may investigate and report upon the operations, accounts, and records of
the officers, departments, functions, and the method or system ofperforming the duties of any
such city or joint powers agency and make such recommendations as it may deem proper and
5
As is more fully discussed in Pmi IV, below, the holding
in Leach
that personnel records of a
school district could not be reviewed by a grand jury, is no longer valid in light
of
amendments
to the Penal Code since that case was decided.
6
See Request for Judicial Notice filed concurrently herewith.
6
City ofCarmel-By-The-Sea
v.
2014 2015 Monterey County Civil Grand JUJy
Respondent'SPomts1rrfd-Authorities
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1 fit. The City contends that the Grand Jury
is
thus limited in reviewing records from an officer
2
of
the City, and that the Records are not those of officers.
3 The Grand Jury submits that the second sentence does not in any way qualify the first.
4 The first sentence stands alone; the second sentence merely enlarges the investigatory powers
of
5 a grand jury with respect to incorporated cities that otherwise exist elsewhere in the Penal Code,
6 for example regarding the removal of city officers
as
set fmih in Section 922 and Government
7 Code section 3 060. The legislative history of Section 925a confirms a grand jury's independent
8 and absolute right to records
of
a city on any matter.
9 Section 925a was originally adopted in 1973 through Assembly Bil l1036? The bill
10 added in its entirely a new Section 925a which read:
11 The grand jury may at any time examine the books and records of any
12 incorporated city located in the county, which pe1iain to fiscal matters. In
13 addition to any other investigatory powers granted by this chapter, the grand jury
14 may investigate and report upon the fiscal matters of any such city and make such
15 recommendations as it may deem proper and fit.
16
Stats. 1973, ch. 1036, sec.
3 p.
2385. As originally adopted, the language of the first two
17
sentences was interrelated, and allowed a grand jury to inspect only records relating to fiscal
18
matters in order to report and make recommendation on fiscal matters.
19 Section 925a was later amended to be applicable to joint powers authorities, and fmiher
20 amended in 1983 to its current form. The
1983
amendment removed the limitation on access to
21 records limited to fiscal matters. The Legislative Counsel's Digest for the amendment stated:
8
22
23
24
25
26
27
28
The Grand Jury has requested the Court to take judicial notice of the legislative history
of
the
bill, located at Stats. 1973, ch. 1036, pp. 2384 2385.
See
Request for Judicial Notice filed
concurrently herewith.
8
The Grand Jury has requested the Court to take judicial notice of the legislative history of the
1983 amendment, Senate Bill924, located at Stats. 1983, ch. 590, pp. 3752 3753.
See
Request
for Judicial Notice filed concurrently herewith.
7
City ofCarmel By The Sea v
2014 2015
Monterey County Civil Grand Jwy Case No. Ml31242
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1 Under existing law, a grand jury may at any time examine the books and
2 records
o
any incorporated city or joint powers agency located in the county
3 which pe1iain to fiscal matters.
4 This bill would instead authorize a grand jury at any time to examine the
5 books and records
o
any incorporated city or joint powers agency located in the
6 county with respect to any matter and further authorize the grand jury to
7 investigate and report upon the operations, accounts, and records
o
the officers,
8 departments, functions, and the method or system o performing the duties o any
9 incorporated city or joint powers agency.
10
Stats. 1983,
ch.
590, p. 3752 (emphasis added).
11
The Grand Jury submits that the plain language
o
Section 925a, and its legislative
12 history, make clear that the Grand Jury
is
entitled to review the records
o
the City on any matter,
13 and it is not limited to the records
o
officers
as
the City argues.
14
The City's proffered interpretation fails for another reason: the second sentence allows a
15 grand jury to investigate and repmi on the records not only
o
officers but also the
16 departments, functions, and the method or system o performing the duties
o
a city. Thus, a
17 grand jury is entitled
to
review the records
o
a department
o
a city, which would include a
18 human resources
or
persom1el depmiment, or department
o
a city manager or city administrator,
19
or review records related to the system o carrying out a city's duties, which would include the
20 hiring, firing and handling
o
personnel matters.
21 The City's interpretation would also play mischief with the statutory scheme and
22 legislative intent concerning the powers
o
a grand jury. The following argument is not intended
23
and should not be interpreted
as
indicating the focus or purpose
o
the Grand Jury's investigation
24 into the City, but
is
merely meant
to
be illustrative
o
the circumstances under which a review
o
25
employee records would be necessary. For example,
i
a grand jury was investigating a claim
o
26
mismanagement by a city manager or administrator with respect to the hiring, firing or discipline
27 o
city employees, that grand jury would need to review the files
o
specific employees
o
that
28
8
City
of
Carmel By The Sea
v 2014 2015
Monterey County Civil GrandJwy
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1 city in order to reach conclusions regarding the claim, and report on the matter. Similarly, if a
2 grand jury were investigating the method or system
of
performing human resources functions of
3 a city, that grand jury would need to review how a variety
of
employee matters were handled in
4 order to make recommendations on how that system could be improved. Under the City's
5 proposed construction of Section 925a, a grand jury would be hamstrung
in
its effmis to fulfill its
6 statutory mandate to investigate and report
on
matters involving cities. Cf
Board
of
Retirement
7 v Santa Barbara County Grand Jury 58 Cal. App. 4th 1185 (1997) (position that grand jury may
8 not investigate retirement board that processes retirement applications because board not part of
9 county would be an absurd reading, defy common sense, and create mischief by rendering
1 umeviewable claims of dilatory processing of such applications).
11
The Grand Jury submits it is entitled to review records of the City
on
any matter, and thus
12
the City must comply with the Subpoena.
13
c
The Public Records Act Does Not Limit The Grand Jury's Authority To Review
14 The Records
15 The City contends that the provisions of the California Public Records Act, Government
16
Code section 6250 et seq. ( Public Records Act or Act ), exempts the Records from disclosure
17 to the Grand Jury. This argument is meritless.
18 The City relies on the exemption fi:om disclosure in the Act for personnel, medical, or
19 similar files, the disclosure
of
which would constitute an unwarranted invasion of privacy.
20 Government Code section 6254 (c). A grand jury s authority to review records does not spring
21
from the Act, however,
it
is based on the independent authority
of
the Penal Code,
in
particular
22 Section 925a.
City
of
Woodlake
197 Cal. App. 4th at 1302. The
Act
is therefore not a limitation
23 on the Grand Jury's authority to review the Records.
24 IV.
GRAND WRY SECRECY REQUIREMENTS PROTECT THE PRIVACY
25 INTERESTS OF THE EMPLOYEES AND OFFICIALS
26 The City contends that the employees' constitutional right to privacy prohibits the Grand
27 Jury's review
of
the Records. The argument has no merit. The right to privacy is not absolute,
28 9
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1 and must be weighed against the competing interest of the Grand Jury in performing its
2 statutorily authorized duty of
investigating and reporting on matters concerning the City. In this
3 case the interests of the Grand Jury prevail due in large
pmt
to the confidentiality obligations
4 imposed
on
the Grand Jury
by
law.
A.
The Right To Privacy Is Not Absolute
6 The Grand Jury agrees that the employees have a right to privacy under the California
7 Constitution. Gilbert v City ofSan Jose 114 Cal. App. 4th 606, 613 (2003). Privacy interests
8 have two classes: (1) interests
in
precluding dissemination or misuse
of
sensitive and
9 confidential information ('informational privacy'); and (2) interests in making intimate personal
10
decisions or conducting personal activities without observation, intrusion, or interference
11 ('autonomy privacy'). Hill v National Collegiate Athletic Assn. 7 Cal. 4th 1, 35 (1994); Gilbert
12 at 613. In this case, the privacy interest at issue is informational privacy.
13
Constitutional privacy interests are not absolute, however. They must be balanced
14 against other important interests.
Hill
at 37;
Gilbert
at 613. A privacy interest may be
15 overcome if a countervailing interest is substantially fmthered.
Hill
at 40;
Gilbert
at 613.
See
16 also Los Angeles Unified School District v Superior Court 228 Cal. App. 4th 222, 238 (2014)
17 (countervailing interests in privacy and disclosure under the
Public Records Act). Thus, there
18 can be no reasonable expectation
of
complete privacy even with personnel records, as other
19
competing interests may ovenide privacy interests. For example,
in Valley Bank ofNevada v
20
Superior Court
15 Cal. 3d 652 (1975 the Supreme Coutt balanced the right of civil litigants to
21
discover relevant facts against the right to privacy of banl
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1 the public interest in non-disclosure.
Los Angeles Unified School District
v
Superior Court
228
2 Cal. App. 4th 222, 239-240 (2014). Finally,
Michael
v
Gates
38 Cal. App. 4th 737 (1995)
3 found no violation of a peace officer's right of privacy
in
the disclosure of personnel records to a
4 city attorney for
use
as possible impeachment at trial. Thus,
an
employee cannot have a full
5 expectation of privacy in personnel records because they can be publicly released, or released to
6 other public officials, with a proper showing.
7 These cases stand for the proposition that the right to privacy is not absolute and must be
8 balanced against competing interests.
9
B.
Grand Jury Proceedings And Raw Evidentiary Material
Must
Remain
10 Confidential
11 The secrecy of all grand jury proceedings is deeply rooted in our traditions
12
McClatchy
44 Cal. 3d at 1173, quoting
Illinois
v
Abbot t Associates Inc.
460 U.S. 557, 572
13 (1983). [W]hen the grand jury conducts a watchdog investigation oflocal government
14 operations as in the instant case, secrecy appears equally vital [as with a criminal grand jury].
15
McClatchy
at 117
5
Several provisions of the Penal Code provide for civil grand jury secrecy.
16 Section 924.1 provides that it is a misdemeanor for a grand juror to disclose any evidence
17 adduced before the grand jury, or what was said
in
deliberations, or
how
any juror voted.
18 Section 924.2 requires each juror to keep secret what jurors have said and how they voted. Each
19 grand juror here took
an
oath, administered
by
the Presiding Judge, that they will not disclose
20 any information or evidence brought before the civil grand jury nor disclose what jurors have
21 said or
how
they voted.
22 With the impmiance of secrecy in mind, the Legislature has enumerated only three
23 instances
in
which
raw
evidentiary material
may
be disclosed
by
a grand jury: 1)
by comi
order
24 when it is necessary to determine
if
a witnesses testimony before the grand
jury
was consistent
25 with testimony
in
comi; 2) where transcripts
of
indictment proceedings are to
be
delivered to a
26 defendant, and thus available to the public; and 3) where, with the approval of the Superior
27 Court, evidentiary materials from one grand jury are delivered to a succeeding grand jury.
28
City
of
Carmel-By-The-Sea
v
2014 2015 Monterey County Civil Grand
Jwy
Respondent's Points and Authorities
in
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1 not being relevant, but they are entirely relevant and on-point because they discuss the balancing
2 of interests in privacy and grand jury investigations. City ofWoodlake addressed the right of a
3 civil grand jury conducting a watchdog investigation to review peace officer personnel
4 records. The court found that the grand jury was entitled to the records absent a legislative
5 restriction on the ability of the grand jury to access the records. 197 Cal. App. 4th at 1303. The
6 court in that case could discern no such legislative restriction.
7 In
79
Ops. Cal. Atty. Gen. 185 (1996) the Attorney General similarly opined that peace
8 officer personnel records could be reviewed by a grand jury without the need for a subpoena.
9 Significantly, the Attorney General noted that such records were already in the hands of public
10
officials, is the property of a government agency, and release of the material to another public
11 official, the district attorney, does not mean loss of 'confidentiality. '
Id.
at193, quoting 66 Ops.
12
Cal. Atty. Gen. 128 (1983). The Attorney General also noted, citing Michael v.
Gates
supra 38
13
Cal. App.
4th
737, that there was no violation of the right to privacy because an essential element
14 of such a right is the expectation of privacy. Id. at 194 195. Because the personnel records
15 could be disclosed tln·ough a variety of means, and because they were already in the hands of
16
other public officials, there could be
no
reasonable expectation ofprivacy. Finally, the opinion
17 noted that [i]n the hands of a grand jury, peace officer personnel records would remain
18
confidential. Id. at 194.
19 The decision in
Leach
258 Cal App. 2d 281, provides no support for the City's position.
20 In that case, the court interpreted an earlier provision of Section 933.5, applicable to special
21 purpose assessment or taxing districts: A grand jury may at any time examine the books and
22 records
of
any special purpose assessing
or
taxing district located wholly or partly in the county.
23
The court held this language did not give a civil grand jury the authority to demand production
of
24 personnel records of such a district because the investigatory power of the grand jury was limited
25 to the financial affairs of the district. Id. at 287. Subsequently, the Legislature amended Section
26 933.5 to add: and, in addition to any other investigatory powers granted by this chapter, may
27 investigate and report upon the method or system of performing the duties of such district. The
28 3
City
of
Carmel By The Sea
v. 2014 2015
Monterey County Civil Grand
Jwy
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1 Attorney General has opined that this, and other amendments to the Penal Code applicable to
2 grand juries, compels a conclusion that the result in Leach is no longer good law, and that a civil
3 grand
jury may pursue an investigation into the method or system
of
performing duties. 78
4 Ops. Cal. Atty. Gen. 290,
294 297
(1995). Personnel records may well
be
relevant to such an
5 mqmry.
6 The cases Board ofTrustees v Superior Court 119 Cal App. 3d 516 (1981) and El
7 Dorado Savings Loan Assn. v Superior Court 190 Cal. App. 3d 342 (1987), cited by the City,
8 are not relevant because they considered different considerations in the context of civil litigation,
9 not grand jury proceedings.
1
Here there is no absolute right to privacy in the Records sought
by
the Grand Jury. The
11 Grand Jury is compelled by law to keep confidential the raw evidentiary material it receives.
12 The privacy interests
of
the affected employees will be protected. Thus the right to privacy is not
13
invaded by production of the Records to the Grand Jury.
14
v.
PRODUCTION OF THE RECORDS TO THE GRAND JURY WILL
NOT
RESULT
N
15 DISCLOSURE TO OTHER THIRD PARTIES
16 The City argues that production of the Records to the Grand Jury will result in compelled
17 disclosure of the Records to other third parties such as the media, presumably through the Public
18 Records Act. This argument was directly refuted by the Supreme Court in
McClatchy
wherein
19
the court held that third party media could not have access to records produced to a civil grand
20 JUI J. 44 Cal. 3d at 1183. The argument has no merit.
21
VI.
A PROTECTIVE ORDER IS NOT NECESSARY
22 The City discusses in it papers the propriety
of
a proposed protective order that was the
23 subject
of
discussion between the parties. Notwithstanding those discussions, the Grand Jury
24 submits that a protective order is unnecessary in this matter because
of
the confidentiality
25 obligations imposed
on grand juries in the Penal Code, as is more fully set forth above. Any
26 protective order would either be duplicative
of
those obligations, or improperly more restrictive.
27
28
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City ofCarmel-By-The-Sea v 2014 2015 Monterey County Civil Grand wy
Respondent's Points and Authorities in Opposition
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1 CONCLUSION
2 The plain language and legislative history of Section 925a compels a conclusion that the
3 Grand Jury is entitled to the Records because it has initiated an investigation into matters
affecting the City and the Records are relevant to that investigation.
n
addition, the
5 confidentiality and secrecy obligations imposed on the Grand Jury will maintain the
6 confidentiality and privacy interests of the employees such that any right to privacy will not be
7 infringed. The petit ion should be denied and, because the end of the Grand Jury s term is
8 approaching, the City should
be
ordered to comply with the Subpoena forthwith.
9
10
11
12
13
14
15
16
17
18
19
2
21
22
23
24
25
26
27
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Respectfully submitted,
15
City
of
Carmel By The Sea
v 2014 2015
Monterey County Civil Grand
Jwy
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in
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