petitioner's reply brief (m131242)

8/9/2019 Petitioner's Reply Brief (m131242)

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discourages a construction that suggests that the Legislature engaged in

an

idle act

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Eisner Uveges (2004) 34 Cal.4th 915, 933 at 935. Respondent's arguments violate

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these principles.

4 B

Respondent's Argument is Illogical

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Finally, Respondent's construction is logically inconsistent. Respondent urges

the court to stop reading at the end of the first sentence. Respondent may not have

it both ways. Either the first sentence grants blanket authority to obtain any and all

municipal records or it does not. There can be no middle ground. If Respondent's

argument were correct, there could

be

no reason to read past the initial sentence.

Since the legislature chose to add a second sentence after granting authority to

examine books and records

in the first sentence, the legislative purpose for adding

the second sentence must have been to define, clarify and qualify the first sentence.

Acceptance o Respondent's argument would require elimination of the second

sentence.

C

The Leach Case Supports Petitioner

Respondent relies

on Board

o

Trustees v Leach

(1968) 258 Cai.App.2d

281.

Petitioner joins Respondent in urging the court to consider that case as authority here.

The Leach court said this about a grand jury's access

to

personnel records:

[4]

... it is only logical that the grand jury does not have the power

to

examine

the

personnel records of the school district. It has no jurisdiction over the hiring, firing,

promotion or demotion of any of the district personnel.

For

what purpose, then,

except to satisfy the curiosity of the jury members, could the grand jury wish to

examine the personnel records? But the investigatory power of the grand jury

cannot

be

used out of curiosity or for a blanket inquiry to bring

to

light supposed

grievances or wrongs for the purpose of criticizing a public officer or department.

(citation omitted) ... Further, the personnel records of the district are maintained

as confidential files; it is common knowledge that such matters are among

the

most confidential

and

sensitive records kept by a private or public employer,

and

their

use

remains effective only so

long as the

confidence of the

records

and

the

.

City of Carmel v. Grand Jury

Superior Court Case No. M 3 242

Petitioner s

Reply

Brief

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confidences of those who contribute to those records, are maintained. 258

Cai.App.2d at 288

Since

Leach

arose under a different statute

it

is arguably distinguishable from the

present case. The policy issues discussed in the above quotation from

Leach

are

however, directly relevant to the issues here. As

in

Leach this grand jury is not

empowered to hire, fire, promote or demote the City employees whose records

it

seeks

to review.

Leach

says the grand jury's limited role over City employees

is reason

enough

to protect these personnel records. In addition, while

Leach

supports the power of a

grand jury to investigate and report

on

the way local governments perform their duties,

the court did not imply they have unfettered access

to

personnel files.

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D. Power of Grand Jurv is Limited

by

Statute

Respondent's Opposition brief, p 4: 24-26 states: While the powers of a grand

jury are broad, they are carefully defined and limited by statute, and the grand jury has

no inherent investigatory powers beyond those granted by the Legislature.

In

light of

that concession, it is appropriate

to

assume the Grand Jury's powers are not absolute

and

are limited by statute, thus limiting disclosure of personnel records with

the

exception of records of city officers.

E

The Statute Does Not Mention Personnel Records.

Respondent relies

on

the books and records language in section 925a.

(Respondent's Opposition

p.

6:12-14). f the legislature had intended this section

to

apply to personnel records, it could have said so.

The

court should ascribe intentionality

and meaning to that omission.

2

Respondent argues

on

page

6

footnote

5

that

each

is no longer good law because PC 925a has

since been amended. While that is true, the amendment did not vitiate

each

because the

amendment did not give the grand jury authority to obtain confidential personnel files.

each

remains

good law for the proposition cited

in

this brief. Furthermore, the language on which Respondent relies,

with respect to any matter'' (Respondent's Opposition, p.8:6) is not found

in

the statute. It appears

only

in

the Legislative Counsel's bill summary. f the legislature had intended that language to be part

of the statute, it would be there, but it is not.

City of Carmel v.

Grand

Jury

Superior Court Case

No.

M 3 242

Petitioner s Reply

Brief

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II.

Enforcing The Subpoena Would Deny Due Process

Respondent argues that CCP section 1985

does

not require the Grand Jury

to

setve the employees with a notice to consumer. Petitioner agrees. The issue is not

whether the employees were legally entitled to service of a notice to consumer. The

issue is whether they should have been given such notice

in

the interests of due process.

The employees are the

real

parties in interest

here. See

Respondent s Opposition, p.

6:1-2. The privacy right does not belong to the

City. It

belongs to the employees.

The

City holds the paper, the employees hold the privacy rights. Note further what the statute

leaves out. It makes

no

reference to personnel

files

of general employees or their

constitutional right of privacy.

Due process, demands that the parties whose rights are being trammeled should

be

given notice and

an

opportunity to object. Respondent seems to argue that since it is

not lawfully compelled

to

give notice to the employees,

it

is free to ignore them. See

Respondent s Opposition, p. 5:23. While that may

be

true under section 1985, it is not

true as a matter of due process.

As the real parties in interest, the employees desetve two things:

1

a copy

o

the

subpoena, which they have never seen, and 2 notice of this proceeding and an

opportunity to

be

heard. Both of those rights

have been

denied to

the

employees.

Respondent states that the employees received notice through the City. That contention

is

misleading. The City s form letter notice

did

not: 1 give

the

employees the subpoena,

2 summarize the content of the subpoena, nor 3 give notice of this proceeding. The

City s form letter was a mere courtesy. Disposition o this dispute should

be

continued

until each of the affected employees is setved with a copy of the subpoena as it relates

to them and given the opportunity to be a party to

this

case.

City

of Cannel

v.

Grand Jury

Superior Court

Case No. M 3 242

Petitioner s

Reply

Brief

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Ill

Enforcing the Subpoena Would Deny Privacy Rights

Respondent does not address Petitioner's arguments concerning the

constitutionally protected privacy rights at issue in this case. California Constitution

Article 1 Section

1

reads:

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

inalienable 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)

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Respondent seems to argue that since this right like all rights, is qualified, it is

9 therefore insignificant. See Respondent's Opposition, p. 6: 1 and p. 10:5-24.

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Express constitutional rights matter. It is the office of the court to protect them, even

when that means that public investigations may be inconvenienced.

Respondent's argument is that the grand jury is so important that individual

privacy rights must give way. That is the very argument that prompted the due

process clause

in

the first place. The mere fact that the Grand Jury wants something

does not mean it can get

it.

Faced with conflicts of this magnitude, the usual solution,

as Respondent points out, is found in the balancing test. The normal practice is that

once one party has produced evidence supporting one interpretation, the burden of

going forward shifts to the other party. When both parties have weighed

in

the court

balances one set of interests against the other. Respondent tacitly acknowledges

this time-honored principle. See Respondent's Opposition,

p.

11:4-6.

... [A]n employee cannot have a full expectation of privacy in personnel records

because they can be publically released to other public officials with a proper

showing (emphasis added)

As qualified ( proper showing ) that is an accurate statement. The question is

whether Respondent has made, or could make, a 'proper showing. Respondent has

City

of Carmel

v.

Grand Jury

Superior Court

Case No. M131242

Petitioner s Reply Brief

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made no showing

at

all. Respondent has merely asserted that the Grand Jury wants

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the personnel records.

No

evidence has been offered to support that conclusory

3

allegation. Petitioner, on the other hand, has adduced numerous compelling reasons

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to safeguard these records. The most important of those reasons

is

that they

are

5 constitutionally protected.

In

light of the unbalanced evidence presented by the

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parties, it would

be

improper to release these constitutionally protected records

without a proper showing and a protective order.

IV. Woodlake is Confined to Police Records

Both parties rely

on

ity

o

Woodlake

v

Tulare ounty Grand Jury

(2011) 197

Cai.App.4

1

h

1293

129 Cal.

Rptr.

3d

241. Respondent reads

Woodlake

to sanction a

grand jury s access to police personnel records. See Respondent s Opposition,

p.

13:4-6. That

is

a correct reading of the case,

however; Woodlake

does not say

grand juries may access other personnel records. Police personnel records fall into

distinctly different category from general employee personnel records at issue here.

Grand juries have express authority to obtain police personnel records. Penal

Code 832.7 a) reads:

Peace officer or custodial officer personnel records and records maintained

by any state or local agency pursuant

to

Section 832.5, 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. This section shall not apply to

investigations or proceedings concerning the conduct of peace officers

or

custodial officers, or

an

agency or department that employs those officers,

conducted by a grand jury a district attorney s office, or the Attorney

General s office. (emphasis added)

There

is

no analogous exemption for general employee personnel records

kept for general public employees. If this were a police case, the City would not

dispute the subpoena. We are disputing the subpoena because the legislature

City

of

Carmel

v.

Grand

Jury

Superior

Court

Case No. M131242

Petitioner s Reply

Brief

8


9/12

carefully and deliberately treated police records differently from

all

other personnel

2 records. Had the legislature intended to give grand juries access to general

3 employee personnel records, it would have enacted

an

exemption similar to PC

4 832.7. The fact that the legislature made police records available to a grand jury but

5 did not make the personnel records of other employees similarly available indicates

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an

affirmative intent to shield those non-police records from a grand jury s scrutiny.

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v.

Protective Order Would

Be

Required if the Court

Orders Disclosure o Personnel Files

Petitioner has cited authority to quash the subpoena. If however, the court

orders the City to comply with the subpoena, Petitioner respectfully requests that a

date and time be established for an in camera hearing and protective order. It is

interesting to note Respondent submitted a proposed Protective Order just days

before the City filed this petition. Respondent now argues against a Protective Order.

Respondent s new position

is

contrary to standard practice in analogous situations.

This case

is

similar to a Pitchess motion

in

the sense that confidential

personnel records are sought

in

a collateral proceeding. Protective orders are

routinely used

in Pitchess

motion practice to ensure that confidential records are

destroyed or returned after they have served their purpose. Therefore a protective

order is called for

in

this case. Respondent argues that a protective order

is

not

needed because grand jurors swear an oath of secrecy.

In requesting a protective order Petitioner does not impugn the integrity of the

jurors any more than it would doubt the sincerity of a defense counsel seeking to

obtain police personnel records by a Pitchess motion. Since protective orders are

routinely given in that context, one is appropriate in this case Board o Trustees v

Leach supra) is instructive.

City

of Carmel

v.

Grand

Jury

Superior Court

Case No.

M131242

Petitioner s

Reply Brief

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10/12

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VI

onclusion

The core issue remains one of privacy. These personnel records are

3

confidential. Special attention

is

demanded whenever confidential records are being

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divulged.

See

White v Davis

1975) 13 Cal.

3d

757

774 120 Cal. Rptr.

94

105.

City of Carmel

v.

Grand Jury

Superior

Court

Case No. M131242

Petitioner s Reply Brief

l:tONAlDGTEEiVfAN City Attorney

City of Carmel-by-the-Sea

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CARLOS

STREET

8th

OFFICE BOX 805

93921

PROOF OF SERVICE BY FACSIMILE AND BY MAIL

I KATHRYN

L.

GRAHAM, declare:

I am a resident of Monterey County, California. I

am

over the age of eighteen

years and not a party to the foregoing action. My business address is P.O. Box 805

(San Carlos between 7th and 8th) Carmel, California, 93921.

On March

17,2015,

I served a true and correct copy of PETITIONER'S REPLY

BRIEF as follows:

(By Facsimile) I caused the above-referenced document(s) to be transmitted by

telecopier

on

this date to the following persons, to the fax number(s) stated below, from

fax number (831)624-5839. The transmission(s) was/were reported as complete and

without error and the transmission report(s) was/were properly issued by the transmitting

facsimile machine:

Sandra Ontiveros on behalf of

LESLIE

J.

GIRARD, Chief Assistant County Counsel

Monterey County Counsel's Office

FAX: (831)755-5283

MICHELLE A WELSH, Attorney

at

Law

Stoner, Welsh Schmidt

FAX: (831)373-1492

J.

OCEAN MOTTLEY, Staff Attorney

UPEC Local 792

FAX: (530)246-1651

MICHAEL W. STAMP, Attorney at Law

Michael W. Stamp Law Offices

FAX: (831)373-0242

(By Mail) To the following persons:

EMPLOYEE 5

P.O. Box 7168

Carmel, CA 93921

EMPLOYEE 6

24 780 Santa Rita

Carmel,

CA

93923

EMPLOYEE ?

1503-1/2 Esplanade

Redondo Beach,

CA

90277

Carmel v Grand

Jury Monterey County

Superior Court Case

No

M131242

PROOF OF SERVICE

BY

FACSIMILE

ND

MAIL


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petitioner's reply brief (m131242)

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