CORRIGAN, J. —
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 [113 Cal.Rptr. 897, 522 P.2d 305] (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.).
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 [78 Cal.Rptr.2d 705]; Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 229-231 [282 Cal.Rptr. 240].) Limiting her request to events during the previous five years, she sought incident summaries, the rank of 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 [108 Cal.Rptr.3d 429] (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
Drinkwater and intervener Sheriffs' Association sought review. In consolidated appeals, the Court of Appeal reversed, distinguishing Brown and criticizing its reasoning. We affirm.
The department again urges that only judicial officers are authorized to rule on Pitchess motions. That argument fails in light of the governing statutes.
Penal Code section 832.7, subdivision (a) provides in part: "Peace officer or custodial officer personnel records and records maintained by any state or
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 five
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 with a body not authorized to rule on it.
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 Procedure
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
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 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 [133 Cal.Rptr.3d 751].) 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.
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 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. Section 187 requires an independent grant of jurisdiction by the 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 § 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 [145 Cal.Rptr.3d 760] [same as to a postconviction motion to transfer an inmate]; People v. Ainsworth (1990) 217 Cal.App.3d 247, 254-255 [266 Cal.Rptr. 175] [same as to postconviction discovery motion].)
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 Legislature was focused primarily upon our Pitchess decision and its
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
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 [130 Cal.Rptr.2d 672, 63 P.3d 228] (Alford); City of Santa Cruz, supra, 49 Cal.3d at p. 83.) We observed in People v. Mooc (2001) 26 Cal.4th 1216 [114 Cal.Rptr.2d 482, 36 P.3d 21] (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 [85 Cal.Rptr.2d 521].)
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.
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 [183 Cal.Rptr. 520, 646 P.2d 191].) 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 [48 Cal.Rptr.3d 183, 141 P.3d 288], italics omitted (Copley Press); see County of Riverside v. Superior Court (2002) 27 Cal.4th 793, 799 [118 Cal.Rptr.2d 167, 42 P.3d 1034].) 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.
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 personnel records." Thus, upon an appropriate finding, other data could be released in lieu of personnel records.
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."
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
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. 655-656.) 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. 656.) If the custodian refuses to comply, the party 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 p. 657.)
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 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. 656.)
The Legislature could not have contemplated such a scheme because Evidence Code section 1045 expressly provides that in camera review is
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 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, underscoring 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. 653), the focus of the reports was that an in camera review would
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 pp. 656-657, 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 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 [101 Cal.Rptr.2d 379] [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. 649.) 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 Sheriffs' 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. 649.) As noted, officer records disclosed at these private proceedings remain confidential under Penal Code section 832.7. (See Copley Press, supra, 39 Cal.4th 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.)
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, pp. 1562, 1563.) Pointing to this mechanism, which existed at the time the Pitchess statutes were enacted, the dissent asserts that "[t]he Legislature has taken pains historically to identify and limit who may conduct in camera review." (Conc. & dis. opn., post, at p. 655.) It suggests the Legislature had these provisions in mind when enacting the Pitchess scheme.
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 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
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 [50 Cal.Rptr.3d 585, 145 P.3d 462]), 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 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. 653.) 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
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. 654.) The dissent suggests we are imputing to it a position about the applicability of the APA that it has not taken. (Conc. & dis. opn. post, at p. 657.) 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. 648.) 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. 651), 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 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 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
The judgment of the Court of Appeal is affirmed.
Cantil-Sakauye, C. J., Chin, J., Liu, J., and Willhite, J.,
WERDEGAR, J., Concurring and Dissenting. —
I agree with the majority that Pitchess
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,
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.
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.)
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
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, 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 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 [section 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, p. 256.) Nonjudicial in camera review remained forbidden. (See ibid. [the statute's broad limits on in camera review "codif[y] existing law"].)
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 Assem. Com. on Judiciary com., reprinted at 29B pt. 3A West's Ann. Evid. Code, supra, foll. § 914, 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
In 1968, the Legislature codified procedures for discovery in proceedings under the Administrative Procedure Act (APA; Gov. Code, § 11340 et seq.). (Stats. 1968, ch. 808, § 3, p. 1561; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 21 [56 Cal.Rptr.2d 706, 923 P.2d 1].) 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 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, pp. 1562, 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
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 [130 Cal.Rptr.2d 672, 63 P.3d 228]; City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 82-83 [260 Cal.Rptr. 520, 776 P.2d 222].) The party seeking 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 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
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." (Assem. Com. on Judiciary com., reprinted at 29B pt. 3A West's Ann. Evid. Code, supra, foll. § 914, 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 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.)
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 Law Revision 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 [50 Cal.Rptr.3d 585, 145 P.3d 462].) 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 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. 645-646.) 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
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. 632, 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. 637). But there is nothing implicit or coded about the statute. Its 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.
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 records, and may rule on whether a showing has been made to warrant discovery. (See § 1043, subd. (b)(3).) Although the nonjudicial officer
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 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. 643-644; 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
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. (Assem. Com. on Judiciary com., reprinted at 29B pt. 3A West's Ann. Evid. Code, supra, foll. § 914, 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. 646 [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.
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
I respectfully dissent.
Baxter, J., concurred.
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.
