City of Carmel-By-The-sea v. Monterey County Civil Grand Jury (m131242)

8/9/2019 City of Carmel-By-The-sea v. Monterey County Civil Grand Jury (m131242)

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1

Donald Freeman SBN 047833

Perrv & Freeman

NO

FILING FEE REQUIRED

GOVT.

C O D E ~ 1 3

2 PO Box 805, Carmel, C 93921-0805

Telephone: (831) 624-5339 x11

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Attorney for City

of

Carmel-By-The-Sea

MAR

0

2 i5

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF MONTEREY

CITY OF CARMEL-BY-THE-SEA,

Moving Party,

v

MONTEREY COUNTY CIVIL GRAND JURY,

Respondent.

Case NoM131242

PETITION TO QUASH

SUBPOENA

Date: March

19

2015

Time: 8:30 a.m.

Dept: TBD

Judge: Villarreal

MOTION.

The City

of

Carmel-By-The-Sea (hereinafter City ), acting

in

its capacity o

custodian of the records sought, moves to quash the sl4bpoena attached to this motio

as Exhibit A (filed under seal as it is marked Confidential ).

POINTS AND AUTHORITIES

1.

The Subpoena The County

of

Monterey Superior Court, acting on behalf o

the civil Grand Jury, has served a subpoena

duces tecum

on the City. The subpoen

seeks production

of

personnel records for ten current and former City employees

Personnel records are confidential under the privacy provisions of the Californi

Constitution, Article

1

Section

1.

The purpose of this motion is to protect th

City s Petition to Quash Subpoena - Ml31242

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confidential records sought y the subpoena. The scope of the records sought is vast

There is no explanation

of

the scope

of

the Grand Jury's investigation. It is impossibl

to know whether the breadth

of

the subpoena coincides with

or

exceeds the scope o

the investigation it is intended to aid. The breadth of the unsupported request is reaso

enough to quash the subpoena. The primary defect in the subpoena is that it seeks t

invade constitutional protection without authority or due process.

2.

Petition to Quash

is

Proper. This petition to quash is the proper method o

addressing a Grand Jury subpoena.

City of Woodlake v Tulare County Grand Jury

(2011) 197 Cal. App. 4th 1293. The

Woodlake

court said this about a freestandin

motion to quash grand jury subpoena:

In the present case, however, the appeal is not from

an

order enforcing

th

subpoena nor

is

it merely an order concerning discovery in

an

ongoing action

Instead, this appeal

is

from an order denying enforcement of the subpoena in· whic

enforcement or nonenforcement was the only issue before the superior court.

Th

motion to quash was, in effect, a freestanding proceeding that sought

no

furthe

relief, similar to a motion to obtain a subpoena ... (197 Cal. App. 4th 1293, 1298)

While the motion to quash was raised by filing an action, the

Woodlake

court did

not treat the motion as part of a civil proceeding. The court treated the motion to quash

as part of the judicial process:

In all its functions, the grand jury operates under the general supervision of the courts

and is

deemed

to be

a judicial

body

or an instrumentality of

the courts.

(citations omitted

It is,

broadly speaking,

an

integral part of

the

court

system,

subject

to

the court'

general supervision. (citations omitted)

An

investigation

by

the grand jury

is

not a civ

proceeding for purposes of the statutory framework for discovery

in civil

proceedings

The

grand jury

is

not adjudicatory,

and

it

does not

provide relief

to

parties

who

appea

before

it,

which

are

the fundamental elements of a civil proceeding. ld

at

1300)

It is not necessary, therefore, to file a judicial action prior to bringing a motion t

quash a grand jury subpoena.

3.

The Right of Privacy Belongs to the Employee. Not the Citv. The right o

privacy, like any right, belongs to the holder of the right, here the current and former Ci

City s Petition to Quash Subpoena-Ml31242


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1 employees. It should be equally self-evident that any effort to abridge the current an

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former City employees' privacy rights must be directed to the parties whose rights ar

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affected because they are the Real Parties In Interest. To do otherwise would violat

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individual due process rights as well as rights of privacy. There is

no

indication that th

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Grand Jury has made an effort to notify the current and former City employees abou

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the subpoena. The City has contacted all of the current and former City employees an

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has given them notice

of

the Grand Jury's desire to review their personnel records.

AI

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but three of the subject current and former City employees are either refusing to allo

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the City to divulge their private records, or have failed to respond to the City's inquiry

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The form letter used for that notice is attached as Exhibit

8

and incorporated herein b

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this reference.

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4. The Custodian Has Standing To Assert Confidentiality Objection.

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Electronics v Superior Court (2007) (40 Cal.4th 360) the identity of a potential clas

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member was sought. Held: Pioneer, as custodian of the relevant documents, ha

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standing to assert the privacy interests of its customers in the identifying informatio

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they gave to Pioneer. (See Valley ank

o

Nevada v Superior Court (1975) 15 Cal.3

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652, 658, 125 Cal. Rptr. 553.)

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City Has a Duty To Assert Third Party Right To Privacy. The court commente

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in inder v Superior Court (1987) (196 Cai.App.3d 893 at p.899) that:

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Dr. Binder, as custodian of his patients' records, has the duty to assert the privacy right

of

his patients in the contents

of

those records. (citation omitted)

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Context of Motion. This is a rarely seen freestanding motion. This dispute i

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part of a grand jury investigation. It is not part of a judicial proceeding. That i

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important because nearly all of the case law on privacy arises in the context of litigation

City s Petition to Quash Subpoena-Ml31242

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usually in discovery. A grand jury investigation is not a civil proceeding for purposes o

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discovery. The court must, therefore, distinguish the cases, including the cases cited

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this brief, from which this dispute arises.

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ARGUMENT

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I

THE GRAND JURY'S SUBPOENA POWER

IS

LIMITED TO OFFICERS.

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The Grand Jury apparently relies on Penal Code section 925a for the propositio

that the personnel records sought are subject to its subpoena power. Penal Code 925

reads in pertinent part:

The grand jury may ... examine the books and records

of

any incorporate

city . .

in

the county

nhe

grand jury may investigate and report upon

th

operations, accounts, and records of the officers departments, functions

and the method or system of performing the duties of any such city ... an

make such recommendations as it may deem proper .... (emphasis added)

13 The Penal Code does not define the term officer.

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According to mos

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dictionaries the term officer

or

public officer is [o]ne who holds or is invested with

public office; a person elected or appointed to carry out some portion

of

a government

sovereign powers. (Black's Law Dictionary). The court in

People v. Olsen

(1986) (18

Cai.App.3d 257, at 265-66) relied on secondary authority for the proposition that th

term officer connotes someone clothed with constitutional, or at least statutory, status

(4) However, [o]ne of the prime requisites [of a public office] is that [it] b

created by the constitution or authorized by some statute. And it is essential tha

the incumbent be clothed with some portion

of

the sovereign functions o

government, either legislative, executive, or judicial to be exercised in the interes

of the public. There must also be a duty or service to be performed, and it is th

nature

of

this duty, not its extent, that brings into existence a public office and

public officer.[footnote omitted] Thus, an officer, as a general rule, is based

o

PC

830 832

defines peace officer, public officer, etc. These definitions pertain exclusively to person

with authority to makean arrest. See, e.g. PC 831. (a) A custodial officer is a public officer, not a pea

officer, employed by a law enforcement agency of a city or county who has the authority an

responsibility for maintaining custody of prisoners.

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some Jaw that defines the duties appertaining to

it

and fixes the tenure, and

exists independently of the presence of a person in it. 52 Cai.Jur.3d, Publi

Officers and Employees,§12,

pp.

176-177, fns. omitted.)

The employees whose records are sought here were not officers as defined i

People v Olsen

They were general employees; most were clerical workers. Se

Exhibit C attached hereto (under seal) and incorporated herein by this reference

None of their positions arose from the constitution or statute,

and

none held elective o

appointive office. Accordingly,

PC

925a. does not apply to the current and former

Ci

employees whose records are sought here.

The City has been unable to find case law or secondary authority for th

proposition that the legislature intended the term officer to apply to general employees

In

the absence o authority to the contrary, the usual canon of construction pertains

Expressio unius est exclusio alterius

(expression

o

one thing is the exclusion o

another). The Grand Jury is limited to discovery

o

police personnel records. (Pena

Code 832.7) Neither

PC

832.7 nor

PC

925a. grant access to other personnel record

for other public employees. If the legislature had intended such a sweeping grant o

authority it surely would have stated so in Penal Code 925a. Since the legislatur

confined the Grand Jury's subpoena power to officers the court is left without

statutory ambiguity to interpret. That which is clear

on

its face admits no interpretation.

The protected nature of personnel records commands the narrowest constructio

o PC

925a. The statute affords

no

authority for the subpoena. The California Suprem

Court has held

in

several cases that the powers of a grand jury are narrowl

circumscribed by its enabling statutes,

in

this case Penal Code 925a. The high cou

summarized the status

o

the law

in Goldstein v Superior Court

(2008) (45 Cal.4th 218

85 Cal. Rptr.

3d

213, 199 P

3d

588). The opinion begins with this summary:

In Daily Journal Corp v Superior Court

(1999) (20 Cal.4th 1117,

86

Cai.Rptr.2

623, 979 P.2d 982), this court ruled that the superior court's powers to disclos

City s Petition to Quash Subpoena- M131242

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grand jury testimony are only those which the Legislature has deeme

appropriate. (ld. at p. 1128, 86 Cai.Rptr.2d 623, 979 P.2d 982.) [l]f superio

courts could disclose materials based only on their inherent powers, the statuto

rules governing disclosure of grand jury testimony would be swallowed up in tha

large exception.

Ibid.)-

If

the power to disclose is limited to express statutory authority it follows that th

power to obtain records must also be restricted to express statutory authority.

II

THE PUBLIC RECORDS ACT PROTECTS PERSONNEL RECORDS.

Government Code section 6254 exempts personnel records from public scrutin

under the Public Records Act. GC 6254 reads in pertinent part:

6254. Except as provided in Sections 6254.7 and 6254.13, nothing

in

th

ch pter

sh ll

be construed

to

require

disclosure

of

records

th t

re

any o

the following:

(a) Preliminary drafts ...

(b) Records pertaining to pending litigation....

(c) Personnel medical or simil r files the disclosure of which would

constitute an unwarranted invasion of personal privacy. (emphasis added)

This statute

is

unqualified. Had the legislature intended to exempt the grand ju

from the prohibition in GC 6254, it could have done so. Article I Section 1 of th

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California constitution makes it unnecessary to demonstrate that disclosure

of

personne

records would constitute an unwarranted invasion of personal privacy because eve

disclosure of personnel records, except police officers or those who hold public office, i

unwarranted.

Ill. PERSONNEL RECORDS ARE CONSTITUTIONALLY PROTECTED

The personnel records sought by the Grand Jury are confidential under Californi

Constitution Article 1 Section

1

Declaration

of

Rights:

SECTION 1. All people are by nature free and independent and have inalienabl

rights. Among these are enjoying and defending life and liberty, acquiring

possessing, and protecting property, and pursuing and obtaining safety

happiness, and privacy. (emphasis added)

According to the California Supreme Court, the right of privacy was added t

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Article 1 to protect the individual against increased surveillance and data collection b

government and business. White v Davis (1975) (13 Cal. 3d 757, 774, 120 Cal. Rpt

94, 1

05 .

The court in White relied

on

the ballot argument in favor of the privac

amendment published

in

the Proposed Amendments to Constitution, Propositions an

Proposed Laws Together With Arguments, at 26 [California Election Pamphlet, Gener

Election (Tuesday, Nov. 7, 1972)]. The

White

court quoted the Election Brochure a

follows:

The proliferation

o

government snooping and data collecting is threatening t

destroy our traditional freedoms. Government agencies seem to

be

competing t

compile the most extensive sets of dossiers of American citizens

Computerization o records makes it possible to create cradle-to-grave profile

o

every American.

II

At present there are no effective restraints on th

information activities o government and business. This amendment creates

legal and enforceable right of privacy for every Californian. (13

Cal. 3d

at 774

533

P.2d at 233, 120 Cal. Rptr. at 105)

According to the White court, one purpose

o

the privacy amendment was t

eliminate the improper use of information properly obtained for a specific purpose, sue

as personnel records compiled to evaluate employee performance, from bein

disclosed to a third party, such as the grand jury, and used for an unintended purpose

Elaborating on the need for constitutional protection in this area, proponents

o

th

amendment stated:

Fundamental to an employee's privacy is the ability to control circulation o

personal information. This is essential to social relationships and persona

freedom. The proliferation o government records over which an employee ha

no .control limits the ability to control our personal lives. Often we do not kno

that these records even exist and we are certainly unable to determine who ha

access to them.

This quotation explains the voters' intent to protect individuals from

violations by the government. The constitutional provision is self-executing ;

White

Davis (13 Cal.

3d

at 775, 120 Cal. Rptr. at 106 . That objective sheds a bright light o

the Grand Jury's subpoena.

In the subpoena several o the current and former Ci

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employees' record requests follow this template:

Employee

7.

All employment contracts and any extensions or amendment

there to, all writings relating to hiring, termination, suspension, evaluation o

performance or paid administrative leave status; the recruiting file from th

recruiting agency through which [Employee #7] was recruited,

and

all intervie

notes supporting the recommendation of the recruiting agency or the decision b

the City of Carmel By the Sea to hire [Employee #7].

That request is vastly over-broad. Several categories of information the City

required to protect are encompassed by the phrase all writings relating to hiring

termination, suspension, evaluation of performance or paid administrative leave.

The subpoena is prefaced with this qualifying language:

[T]he Grand Jury

is

not requesting the production of social security numbers

benefrt information, medical records or information, or similar records o

information ...

12 Even as qualified, the request is impermissibly over-broad. For example,

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Employee 7 had been the victim of sexual harassment, experienced a financia

embarrassment, or had his/her salary deposited directly into a numbered account, th

records pertaining to those things would be encompassed by the subpoena of his/he

records. His/her right of privacy overrides any curiosity of the Grand Jury. Furthermore

it is impossible to know what the Grand Jury means by the phrase or similar records o

information.

Should the Court grant the Grand Jury's request for production of document

City respectfully requests the Court set a time and date for an in c mer hearing.

IV. GRAND JURY RECORDS ARE NOT ALWAYS CONFIDENTIAL

The City, and the current and former City employees whose records are sought

must recognize that the Grand Jury may decide to make these records public. Pena

Code Section 929 provides:

As to any matter not subject t privilege with the approval o the presidin

judge of the superior court . . , a grand jury may make available t the publi

part or all

o

the evidentiary material

findings, and other information relie

upon by, or presented

to

a grand jury for its final report in any civil grand ju



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investigation provided that the name of any person or facts that lead

to t

identity of ny person who provided information to the grand jury shall no

be released. Prior to granting approval pursuant to this section, a judge rna

require the redaction or masking of any part

of

the evidentiary material, findings

or other information to be released to the public including, but not limited to, th

identity of witnesses and any testimony or materials of a defamatory or libelou

nature. (emphasis added)

These personnel records are confidential but not privileged. With judicia

approval, therefore, these records may be made public. Confidentiality is not absolute

In

light of the press coverage given to this investigation it would be relatively easy t

identify the current and former City employees whose records are subject t

discretionary disclosure.

v PERSONNEL RECORDS MAY NOT

BE

SELECTIVELY DISCLOSED

If the records sought by this subpoena are disclosed to the Grand Jury, there is

danger they will become public records under the Public Records cf despite th

protections of Penal Code 925a. The local press and other interested parties can b

expected to argue that if these constitutionally protected records have been given to

third party, such as the Grand Jury, they must

be

made available to others since th

cloak

of

confidentiality will have been lost.

VI.

CASE LAW PROTECTS PERSONNEL RECORDS

There are a surprisingly large number of cases arising under the constitution'

privacy guarantee.

There is a regrettably small number

of

cases dealing wit

subpoenas

of

personnel records for public employees. Nearly all of the cases dealing

2

Government Code 6252(e) Public records includes any writing containing information relating to the conduct o

the public's business prepared, owned, used, or retained by any state or local agency regardless

of

physical form o

characteristics. See also Government Code 6253 (public records subject to disclosure) See also Government Cod

6254.5 . local agency discloses a public record

which is

otherwise exempt...shall constitute a waiver of t

exemptions specified in Sections 6254 )

and rdon v

City

o

Los

ngeles

(2014) (232 Cai.App.4th 175; 18

Cai.Rptr.3d 324)


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with public employee personnel records arise in the context of

Pitchess

motions

3

.

Cit

o

Woodlake

v

Tulare County Grand Jury

(2011) (197 Cal. App. 4th 1293) is the onl

case we can find that deals with a grand jury subpoena of personnel records. It arise

in the context of police personnel records. The

Woodlake

case turned on a statute tha

pertains only to police. The court addressed that salient fact thus:

Penal Code section 832.7 expressly provides that its designation

confidentiality of pe ce officer personnel records shall not apply

investigations or proceedings concerning the conduct of

pe ce officers .

conducted by a grand jury. Additionally, the grand jury does not seek record

pursuant to the authority of the Public Records Act that is

as

a member of th

general public; instead, it acts pursuant to the express statutory authori

afforded to grand juries by Penal Code sections 925 and 925a. ld at 1302

(emphasis added)

Since

Woodlake

is confined to police records it affords no guidance here.

records at issue here are for general employees not police officers. As the

Woodlak

court pointed out, those general employees are protected by the constitution's privac

provision.

The legislature could have opened all

public personnel records to grand ju

scrutiny, but it did not. The legislature's decision not to subject

all

employees to

th

diminished protection afforded police officers must be accorded the intentionality i

plainly commands. The reason the legislature granted the grand jury access to poli

personnel records, but did not extend that access to other public employees, can b

explained; Police occupy a unique position of trust, confidence, authority and power

When the police are corrupted it

is

essential that the public have recourse to thei

employment records. The same public concern does not apply to general employees

It would

be

a mistake to decide this motion as if the employees concerned ar

5

3

Pitchess v. Superior Court (1974)

11

Cal.3d 531 .


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equivalent to armed and sworn peace officers with life and death power'' over eve

person they encounter.

Since the Woodlake case is not helpful we are forced to fall back on privac

cases arising in the normal course of civil litigation. Those cases fall overwhelmingly o

the side of protecting the confidential records.

Board of Trustees v Superior Court (1981) (119 Cai.App.3d 516, 526) found n

compelling state interest to require disclosure of personnel, tenure and promotion file

in

a defamation action.

El orado Savings & Loan Assn v Superior Court (1987) (190 Cai.App.3d 342)

Gender and age employment discrimination case; Plaintiffs sought all personnel record

of the only male in a comparable position. The trial court ordered production of th

entire personnel file of that non-party. The Court of Appeal reversed because th

record was inadequate to support discovery of the entire personnel file. The trial cou

was instructed to consider less intrusive means of discovery and in camera inspections

n Board of Trustees v Leach (1968) (258 Cal. App. 2d 281, 65 Cal. Rptr. 588

the court stated that it is common knowledge that such matters [employee personne

files] are among the most confidential and sensitive records kept by a private or publi

employer, and their use remains effective only so long as the confidence of the records

and the confidences of those who contribute to those records, are maintained.

n

applying these theories to the employee records at issue

in

this case, it i

useful to consider what such records usually entail. The City's personnel files are

collection of many different types of data. It is this diverse variety and large quantum o

information which has probably attracted the Grand Jury's attention and piqued it

interest. They may include information elicited from the employee, such

s

pas

employment, medical (not requested by the Grand Jury in this matter), educational an

family data. Additionally, they often contain material collected about the employee whil

t work, such as payroll data, job performance reports, documentation of medica

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problems (not requested by the Grand Jury in this matter) and disciplinary actions

References, recommendations, psychological information and comments on attitud

may also find their way into personnel files. Almost every file contains informatio

which individuals themselves do not readily reveal. Additionally, personnel files typical

contain some financial and medical data (not requested by the Grand Jury in th

matter). As such, this is exactly why Article

1

Section 1 exists in the Californi

Constitution.

VII. THE COUNTY'S PROPOSED PROTECTIVE ORDER IS INADEQUATE

The court should grant the City's petition to quash and thereby deny the Gran

Jury's effort to invade the privacy

o

the former and current City employees whos

confidential employment records are sought. The information sought does not belong t

the City. The City is merely the custodian of the information. California Constitution

Article 1 Section 1 vests in the employee the proprietary interest in the informatio

sought.

In the event that the Court disagrees with the City's analysis disclosure must b

narrowly tailored to achieve the Grand Jury's legitimate investigative purpose

in

th

least intrusive manner possible. To satisfy that protection the Grand Jury must b

ordered to inform the Court o the precise grounds for this subpoena so that the Court

order may be narrowly tailored to protect the former and current City employee

paramount constitutional rights.

Furthermore, the protective order conjoined to the disclosure must limit th

permissible disclosure of the records, and it must require that the records be returned t

the City at the close of the Grand Jury investigation. The County's proposed form o

Protective Order fails to include either of those protections.

VIII. CONCLUSION

Numerous courts have held that personnel files must be protected

in

the absen

o

a focused need to obtain specific information. See e.g.

Harding Lawson Assoc v

City s

Petition to Quash Subpoena Ml31242


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1 Superior Court (1992)

1

0 Cal. App.4th 7, at 10,11 ). In Harding Trial Court had ordere

2 production 56 categories of information in personnel records. On appeal a perempto

3

writ was issued to vacate its order insofar as it required disclosure

of

confidentia

4

material

in

the personnel files

of

employees other than [plaintiff].

/d

The cou

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explained that personnel files are protected unless the party seeking discovery ca

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show a compelling need for the particular documents and that the information canna

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reasonably be obtained through depositions or from nonconfidential sources. Hardin

Lawson Assoc v Superior Court (1992) (10 Cal. App.4th 7, at 10) See also Alch

Superior Court (2008) (165 Cai.App.4th 1412, 1432)

re:

confidential nature

of

th

particular documents in the personnel file.

In the instant case it appears the Grand Jury did not ask the employees whos

personnel documents are being subpoenaed if they would waive their right o

confidentiality and allow the City to produce the documents, or alternatively, subpoen

the employees and their personnel records directly.

Therefore, the Court is obligated to quash the Grand Jury's subpoena.

Respectfully submitted,

Dated: March___£_, 2015

~ ~

ONALDG:fREMAN '

City Attorney

City

of

Carmel-by-the-Sea

EXHIBITS:

Exhibit A the Civil Grand Jury Subpoena (Under Seal) - not attached to the

Petition served

on

the Respondent Employees/Real Parties in Interest

Exhibit B - City's letter to former and current employees

re

waiver of

confidentiality rights

Exhibit C - Declaration of City

of

Carmel-by-the-Sea City Administrator

Regarding Employee Employment Status (Under Seal) - not attached to the

Petition served

on

the Respondent Employees/Real Parties in Interest


Page 1


14/15

Dear

J

Earlier this month I apprised you that the Monterey County Civil Grand Jury

CGJ)

had

requested your personnel file. The City declined

to

provide that

document to the

Jury.

Yesterday

the

City received a subpoena from the Civil Grand Jury demanding the City provide

the

following

information

to

the Office of the County Counsel from your file:

The City is

to

produce and present

the information

on or before Wednesday 4 March.

You

may

wish to contact your independent legal counsel regarding this matter. Should you have any

questions please contact me.

Very Truly

Yours,

Douglas J. Schmitz

City Administrator

25

February 2015

XHI I

T B


15/15

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CITY OF CARMEL-BY-TilE-SEA

Petitioner

v.

2014-2015 MONTEREY COUNTY CIVIL

GRAND JURY

Respondent.

MAR 6 2

5

L.Newen

Case No.

M 3 242

ORDER SHORTENING TIME FOR

HEARING ON PETITION TO QUASH

SUBPOENA DUCES TECUM

Date: March 19 2015

Time:

8:30am.

Dept:

To be

determined

Judge: To

be

determined

Date petition filed:

To

be

determined

Trial date:

N/

A

Good cause appearing the ex parte application of he City of Carmel-by-the-Sea and the

2014 - 2015 Monterey County Civil Grand Jury

to

shorten

time

for a hearing

on

a Petition

to

IT IS HEREBY ORDERED

that

the petition

and

supporting papers be

filed

and served

o

counsel for

the

Grand Jury

no

later

than

March 10 2015; that responsive pleadings

be

filed and

served

no

later

than

March 13 2015; any reply filed and served no later

than

March 17 2015;

and that a hearing on

the

petition

be

held

in

a Department to be determined on March 19 2015

at 8:30 am. Service shall be personal or by facsimile.

IT IS

SO

ORDERED.

Dated:

March

JQ_

2015

City of Carmel-By-The-sea v. Monterey County Civil Grand Jury (m131242)

Documents

Transcript of City of Carmel-By-The-sea v. Monterey County Civil Grand Jury (m131242)