Following the decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] (Pitchess), the Legislature enacted Penal Code section 832.7. (See Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1538 [108 Cal.Rptr.3d 429].) That statute provides that, subject to some exceptions not pertinent here, "Peace officer or custodial officer personnel records and records maintained by any state or local agency ... or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code."
Kristy Drinkwater was terminated from her position as a correctional deputy employed by the Department, for falsifying her time records in order to obtain compensation to which she was not entitled. She appealed her termination pursuant to the terms of the memorandum of understanding (MOU) then in effect between the County of Riverside (County) and the Riverside Sheriffs' Association (RSA), the employee organization which represents employees in the law enforcement unit for purposes of collective bargaining. The law enforcement unit consists of County employees in several classifications, including correctional deputies.
The MOU in effect at the time of Drinkwater's termination provided for a procedure by which correctional deputies could appeal the termination of their employment, as provided for in Government Code section 3304, subdivision (b).
Drinkwater asserted that the penalty of termination was disproportionate to her misconduct because other Department employees who had falsified time records had received lesser punishment. She submitted a motion to hearing officer Jan Stiglitz for discovery of disciplinary records of other Department personnel who had been investigated or disciplined for similar misconduct. Stiglitz found that Drinkwater had stated a "`plausible scenario'" showing good cause for the production of the records, but denied the motion without prejudice because Drinkwater had not identified the employees whose records she sought. Stiglitz held that although Drinkwater was entitled to discovery of the records on a proper showing, the Department was not required to search its records to provide her with the information requested.
In a subsequent renewed motion, Drinkwater identified the employees by name and stated the nature of the misconduct she understood they had committed and the resulting penalties, or absence thereof. However, she sought production only of records which had been redacted to conceal the identities of the employees involved.
The Department opposed the motion on its merits. It acknowledged that Stiglitz had jurisdiction to rule on the motion. On March 15, 2010, Stiglitz found good cause and ordered the Department to produce the requested records for his in camera review. On March 19, 2010, the Department filed its petition for a writ of administrative mandate, seeking to compel Stiglitz to vacate his decision that good cause existed. The petition did not challenge Stiglitz's authority to rule on the motion.
Brown v. Valverde, supra, 183 Cal.App.4th 1531 was decided shortly before the superior court was to rule on the petition. The Department brought the ruling to the trial court's attention and argued, for the first time, that only a judicial officer can rule on a Pitchess motion. Following supplemental briefing and further argument, the trial court found, based on Brown v. Valverde, that "there is no statutory authorization nor is there authorization pursuant to the [MOU] between [the Department] and [RSA] that would permit [a hearing officer] in a disciplinary hearing to consider Pitchess discovery motions." Accordingly, it granted the petition.
RSA, which had not been notified of the writ proceedings, brought motions for a new trial, to set aside and vacate the court's order, and for leave to intervene. The motions were granted, and RSA filed its opposition to the petition. The court again granted the writ and ordered Stiglitz to deny the motion.
The courts have long recognized that Code of Civil Procedure section 1094.5 permits review only of a final decision on the merits of the entire controversy and does not permit piecemeal review of interim orders and rulings. (Kumar v. National Medical Enterprises, Inc. (1990) 218 Cal.App.3d 1050, 1055 [267 Cal.Rptr. 452].) This is a part of the requirement that administrative remedies must be exhausted before the parties may resort to the courts, and is "analogous to the one final judgment rule in judicial proceedings." (Alta Loma School Dist. v. San Bernardino County Com. on School Dist. Reorganization (1981) 124 Cal.App.3d 542, 554-555 [177 Cal.Rptr. 506] [Fourth Dist., Div. Two] (Alta Loma).) There are a few exceptions to the finality rule: where the administrative body lacks jurisdiction; where it would be futile to pursue the administrative process to its conclusion; or where irreparable harm would result if judicial intervention is withheld until a final administrative decision is rendered. (Id. at p. 555.)
The Department relies on Bodinson Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321 [109 P.2d 935]. In that case, the California Supreme Court held that in California, in the absence of any remedy at law, traditional mandamus had been expanded "not only to compel the performance of a ministerial act, but also in a proper case for the purpose of reviewing the final acts and decisions of statewide administrative agencies which do not exercise judicial power." (Id. at p. 330.) However, contrary to the Department's contention, the court held that what is now called administrative mandamus is available only to review final acts and decisions of administrative agencies. (Ibid.) It did not hold that mandamus is available to review interim orders rendered in an administrative proceeding. Moreover, when the Legislature enacted Code of Civil Procedure section 1094.5, subdivision (a) in 1945, four years after the decision in Bodinson, it specified that administrative mandamus is available solely to review final orders and decisions in an adjudicative administrative proceeding. (Stats. 1945, ch. 868, § 1, p. 1636.) Consequently, even if Bodinson had held that review of interim orders was available through administrative mandate, it would have been overruled by the enactment of Code of Civil Procedure section 1094.5, subdivision (a), which provides for review of final administrative rulings only. Accordingly, the lack of any other remedy is not an exception to the rule that only final administrative rulings are subject to court review by administrative mandamus.
As part of its argument that administrative mandamus is available to review the order on the Pitchess motion because it has no other remedy, the Department contends that judicial intervention was necessary to prevent irreparable harm. It contends that because Stiglitz lacks jurisdiction to rule on a Pitchess motion, he also has no authority to review the confidential personnel files he ordered the Department to produce. It states that if it were required to wait to challenge the order for production of confidential personnel records until the controversy was finally resolved, "there would be nothing to protect since the very information sought [to be] protected ... would be divulged," at least to Stiglitz.
Drinkwater and RSA assert that because the Department failed to raise the question of Stiglitz's authority to rule on the Pitchess motion before filing its petition for administrative mandamus, it did not exhaust its administrative remedies. Consequently, they contend, the trial court lacked jurisdiction to rule on the writ petition.
As a general rule, a court has no jurisdiction to intervene in an administrative matter until the parties have exhausted their administrative remedies by obtaining a final order from the administrative body. Exhaustion requires "`a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.' [Citation.] `"The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary)."' [Citation.]" (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 609 [110 Cal.Rptr.3d 718, 232 P.3d 701].) Exhaustion is required even if the issue is a pure question of law, as it is in this case. (NBS Imaging Systems, Inc. v. State Bd. of Control (1997) 60 Cal.App.4th 328, 337 [70 Cal.Rptr.2d 237]; Robinson v. Department of Fair Employment & Housing (1987) 192 Cal.App.3d 1414, 1417 [239 Cal.Rptr. 908].)
As discussed above, the finality rule is an aspect of the exhaustion requirement. (Alta Loma, supra, 124 Cal.App.3d at pp. 554-555.) The same
In its original ruling on the writ petition, the trial court held that a Pitchess discovery motion "may be heard only by sworn judicial officers unless there is some express authority which would permit someone other than a sworn judicial officer to consider Pitchess discovery motions as indicated in Brown v. Valverde[, supra,] 183 Cal.App.4th 1531." The court further held that there is no statutory authorization which would permit a hearing officer in a disciplinary hearing to consider Pitchess motions and no authority in the parties' MOU which would permit a hearing officer to hear a Pitchess motion. In its final ruling, after having vacated the first ruling to permit RSA to intervene, the court ruled, "In Brown v. Valverde[, supra,] 183 Cal.App.4th 1531, consistent with the ruling [sic], the Department's petition for writ of mandate is granted. The respondent [hearing officer] is directed to reverse his earlier issued order granting [Drinkwater's] discovery motion and is further directed to deny the motion."
The phrasing of the trial court's final ruling is somewhat unclear. However, we understand it to mean that the trial court concluded, based upon Brown v.
On appeal, the parties and amici curiae approach the issues in different ways, but boiled down to essentials, the issues in dispute are (1) whether Pitchess discovery is available in an administrative proceeding, including a disciplinary hearing pursuant to Government Code section 3304, subdivision (b); (2) whether the Pitchess statutes require a court, rather than a hearing officer in an administrative hearing, to decide a Pitchess motion; (3) whether parties may provide for Pitchess discovery contractually, even if the statutory scheme otherwise does not provide for it in a particular context; and (4) whether the MOU in this case grants a hearing officer that authority.
In Pitchess, supra, 11 Cal.3d 531, "defendant Caesar Echeveria was, along with others, charged with battery against four deputy sheriffs. Echeveria moved for discovery of the deputies' personnel files, seeking records showing prior complaints against the deputies, in order to establish at trial that he acted in self-defense to their use of excessive force. The superior court granted Echeveria's motion, and Sheriff Pitchess sought a writ of mandate to quash a subpoena requiring production of the confidential records. The Supreme Court denied the writ, holding that a criminal defendant who is being prosecuted for battery on a peace officer is entitled to discovery of personnel records to show that the officer had a history of using excessive force and that defendant acted in self-defense." (Brown, supra, 183 Cal.App.4th at p. 1538, citing Pitchess, at pp. 535-537.)
"Following the Pitchess decision, allegations surfaced that law enforcement agencies were destroying records to protect the privacy of officers whose personnel files contained potentially damaging information. [Citation.] At the same time concerns were expressed that defendants were abusing Pitchess discovery by conducting fishing expeditions into arresting officers'
"The relatively low threshold for discovery embodied in [Evidence Code] section 1043 is offset, in turn, by [Evidence Code] section 1045's protective provisions which: (1) explicitly `exclude from disclosure' certain enumerated categories of information ([Evid. Code,] § 1045, subd. (b)); (2) establish a procedure for in camera inspection by the court prior to any disclosure ([Evid. Code,] § 1045, subd. (b)); and (3) issue a forceful directive to the courts to consider the privacy interests of the officers whose records are sought and take whatever steps `justice requires' to protect the officers from `unnecessary annoyance, embarrassment or oppression.' ([Evid. Code,] § 1045, subds. (c), (d) & (e).)
"The statutory scheme thus carefully balances two directly conflicting interests: the peace officer's just claim to confidentiality, and the criminal defendant's[
As did the trial court, the Department relies on Brown, supra, 183 Cal.App.4th 1531 as its authority that Pitchess motions are not available in any administrative proceeding as a matter of law. This is not what Brown holds, however.
In Brown, the issue of the availability of Pitchess discovery arose in the context of a Department of Motor Vehicles (DMV) "administrative per se" hearing. An administrative per se hearing is one in which a hearing officer, typically a DMV employee, determines whether a driver's license must be suspended following an arrest for driving with a blood-alcohol level of 0.08 percent or greater. (Brown, supra, 183 Cal.App.4th at pp. 1535-1538.) The court expressly addressed only that issue. (Id. at p. 1546 ["The issue before us is whether a Pitchess motion is available in a DMV administrative per se hearing."]; see id. at pp. 1547-1559 [entire discussion falls under the subheading "Pitchess Discovery Is Not Available in DMV Administrative Per Se Hearings"].) Moreover, although in the course of deciding the narrow issue presented the court rejected Brown's contention that Pitchess discovery is available in all administrative proceedings, the court ultimately found itself forced to conclude that the scheme does not foreclose the use of Pitchess motions in all types of administrative proceedings. Rather, because Evidence Code section 1043 directs that a written Pitchess motion shall be filed "with the appropriate court or administrative body," the court held that the Legislature intended Pitchess discovery to be available in some types of administrative proceedings. (Brown, supra, 183 Cal.App.4th at pp. 1549, 1555.) Consequently, the case does not stand for the proposition that Pitchess discovery is not available in any type of administrative proceeding. Rather, it holds that
After having concluded that because Evidence Code section 1043 provides that a Pitchess motion is to be made in "the appropriate court or administrative body," Pitchess discovery is available in at least some administrative proceedings, the Brown court then held, contradictorily, that because Evidence Code section 1045, which sets out the Pitchess procedure in detail, refers solely to the powers and duties of courts, the Legislature actually intended that all Pitchess motions are to be decided by courts, i.e., by sworn judicial officers and not by administrative hearing officers. (Brown, supra, 183
For the same reasons, we also disagree with Brown's conclusion that because administrative hearing officers may not be well qualified to rule on Pitchess motions, the Legislature did not intend for Pitchess discovery to be available in proceedings not heard by sworn judicial officers. (See Brown, supra, 183 Cal.App.4th at p. 1558.) Our conclusion that administrative mandamus is available to obtain judicial review of a hearing officer's ruling on a Pitchess motion before the personnel records are produced allays any concern that an administrative hearing officer who is not trained in the law may not be qualified to rule on a request for discovery of confidential materials.
Because we have determined that Pitchess discovery is available in a section 3304(b) hearing as a matter of due process where it is relevant to the officer's defense, we need not address the parties' various contentions as to whether the MOU either expressly or as a matter of past practices provides for Pitchess discovery. The MOU provides for a full evidentiary hearing, including the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses, to impeach witnesses, and to rebut derogatory evidence. It also provides that "the Employee Relations Division Manager, or designee, shall arrange for the production of any relevant County record requested by either party," and in the same paragraph empowers the hearing officer to issue subpoenas. In order for the MOU to comport with due process requirements in the context of a section 3304(b) hearing, it must be inferred that where officer personnel records are relevant to the issues raised, this provision in the MOU affords discovery of the relevant records.
The Departments asks that if we find that Pitchess discovery is available in the section 3304(b) hearing, we remand the cause to the trial court for a ruling on its original contention that Drinkwater did not meet her burden of establishing good cause for an in camera review of the personnel records. RSA responds that the trial court has already ruled that the documents Drinkwater requested were relevant.
Although the trial court stated during the hearing on the writ petition that the records Drinkwater sought are relevant, the court did not actually rule on that issue, relying instead entirely on Brown, supra, 183 Cal.App.4th 1531 as the basis for issuing the writ. After the trial court granted the writ petition on the basis of Brown, the Department did nothing to seek a ruling on its original contention that Drinkwater failed to demonstrate good cause for the in camera review. (We presume that it did not seek such a ruling because the trial court had stated that it believed the materials sought were relevant to Drinkwater's defense.) By failing to seek a ruling on its original theory, the Department effectively abandoned that theory in favor of its contention that Stiglitz lacked jurisdiction to decide the motion at all. Having failed to
The parties have filed three requests for judicial notice.
The order granting the writ petition is reversed, and the trial court is directed to deny the petition.
Richli, J., and King, J., concurred.
Penal Code section 832.8 provides:
Evidence Code section 1046 provides:
Penal Code section 832.7 does not refer to Evidence Code section 1045. However, section 1045 provides the procedure for ruling on a Pitchess motion:
The Administrative Procedure Act (APA; Gov. Code, § 11340 et seq.) applies generally to adjudicatory proceedings of state administrative agencies, such as the DMV. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Administrative Proceedings, § 96, p. 1221; Gov. Code, § 11501, subd. (a) ["This chapter applies to any agency as determined by the statutes relating to that agency."].) The APA does not apply by statute to administrative appeals conducted by a local law enforcement agency pursuant to Government Code section 3304, subdivision (b); on the contrary, Government Code section 3304.5 provides that such an administrative appeal "shall be conducted in conformance with rules and procedures adopted by the local public agency." The MOU between the parties to this case contains provisions for discovery in disciplinary hearings. Those provisions do not require compliance with Government Code section 11507.6, nor, needless to say, with the Vehicle Code.
The type of data which may be disseminated pursuant to Penal Code section 832.7, subdivision (c) is not the type of information typically sought in a Pitchess motion, and it is not the type of information which would be useful in establishing a defense of disparate treatment. Statistical data stripped of any detail as to the circumstances of the other officers' transgressions or their prior discipline history or any other circumstances which may be relevant to the reasons that the department or agency imposed specific sanctions on the other officers will almost never be sufficient to permit the conclusion that the officer who seeks the records was truly similarly situated, because the agency has broad discretion to take almost innumerable factors into account in determining an appropriate sanction for a particular officer. (See Talmo v. Civil Service Com., supra, 231 Cal.App.3d at pp. 230-231.) It is certainly not sufficient for Drinkwater's defense to show the number of other officers who were disciplined for falsifying time records and the discipline imposed, with regard for the reasons that a particular sanction was imposed on another officer.