Respondent's Points and Authorities in Opposition to Petition to Quash Subpoena Duces Tecum

8/9/2019 Respondent's Points and Authorities in Opposition to Petition to Quash Subpoena Duces Tecum

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CHARLES J. McKEE,

SBN

152458

County Counsel

LESLIE

J

GIRARD, SBN 098986

Chief

Assistant County Counsel

County

of

Monterey

168 West Alisal Street, Third Floor

Salinas, California 93 901-2653

Telephone: (831) 755-5045

Facsimile: (831) 755-5283

Attorneys for Respondent

2014-2015

MONTEREY

COUNTY CIVIL GRAND

JURY

SUPERIOR COURT OF CALIFORNIA

COUNTY

OF MONTEREY

CITY OF CARMEL-BY-THE-SEA,

Petitioner,

v.

2014-2015 MONTEREY

COUNTY CIVIL

GRAND JURY,

Respondent.

Case No. Ml31242

RESPONDENT S

POINTS

AND

AUTHORITIES

IN

OPPOSITION TO

PETITION TO QUASH SUBPOENA

DUCES

TECUM

Date:

March

19, 2015

Time:

8:30a.m.

Dept: To be determined

Judge: To

be

determined

Date Petition filed: March 10, 2015

Trial Date:

N/A

City ofCarmel By The Sea

v

2014 2015 Monterey County Civil Grand Jury

Respondent s Points and Authorities hi Oppositioino-Petitiml

Case No. M131242


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People v Superior Court

of

Santa Barbara County ( 1973 Grand Jury'')

13

Cal. 3d 430 (1975) .......................................................................................................... 4

People v Woodhead

43 Cal. 3d 1002 (1987) ........................................................................................................ 3

Valley Bank

of

Nevada v Superior Court

15 Cal. 3d 652 (1975) ....................................... · ................................................................10

STATUTES

Penal Code Section

922

....................................................................................................... 7

Penal Code Section 925a ........................................................................................... passiln

Penal Code Section

929

.....................................................................................................

12

Government Code Section 3060 .......................................................................................... 7

Government Code Section 6254c ................ : ................................................................9 10

Government Code Section 6506 .......................................................................................... 5

28

City ofCarmel-By-The-Sea v 2014 2015 Monterey County Civil Grand Jury

Respondent s-Points and Authorities

in

Opposition to Petition --

Case No. Ml31242


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1 INTRODUCTION

2 Respondent, the

2014

2015 Monterey County Civil Grand Jury ( Grand Jury ),

3 pursuant to its investigatory authority under Section 925a of the California Penal Code

1

has

4 initiated

an

investigation into ce1iain matters regarding the City

of

Carmel-by-the-Sea ( City ).

5 The Grand Jury has subpoenaed ce1iain records from the City ( Records ), and this petition is

6 brought to quash the subpoena. The Grand Jury is, without qualification, entitled to production

7 of the requested Records; the petition should be denied and the City compelled to comply with

8 the Subpoena forthwith.

9 STATEMENT OF THE FACTS

10 The Grand Jury is a duly constituted and impaneled civil grand jury for the County of

11

Monterey. Declaration

of

Brandon Hill ( Declaration ) at page 1, paragraph 2. The Grand Jury

12 has initiated an investigation into ce1iain matters involving the City. Declaration at page 2,

13

paragraph 3. The Grand Jury believes that the City is in possession ofRecords relevant to its

14 investigation and has subpoenaed those Records, which, generally speaking, are employment

15 records

of

certain identified current and former City officials and employees? Declaration at

16 page 2, paragraphs

4 6 .

The Subpoena called for either the production

of

the Records to the

17 Grand Jury, or, in the alternative, that the Records be made available to the Grand Jury for

18 review and inspection at a private room located at the City.

3

Declaration at page 2 paragraph 7.

19

The Grand Jury is not interested

in

certain personal information such

as

social security numbers

20 or personal medical information, and the Subpoena made that clear. Declaration at page 2,

21 paragraph 8. The City did not either produce the Records or make them available for inspection

22 and review on the date called for in the Subpoena. Declaration at page 2, paragraph 9.

23

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1

Unless otherwise indicated, all references are to the California Penal Code.

2

The Grand Jury is informed that the subpoena has been provided under seal to the Court in

order to protect the secrecy of the Grand Jury 's proceedings.

3

Although not explicitly stated, the inference is that the review would take place without City

personnel present.

City

of

Carmel By The Sea v 2014 2015 Monterey County Civil Grand Uly

Case No. M131242

Respondent s POinls

a n d ~ U t h O r i t l e s itYOpposition-tcfPetition

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-


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1 The term of the Grand Jury ends on June 30, 2015. Declaration at page 2, paragraph 10

2

In

order to finish its investigation into the matter involving the City, and consider whether to

3 complete a report regarding the matter prior to the conclusion of its term, the Grand Jury needs to

4 either have the documents produced or made available for inspection and review immediately.

5 Declaration at page 3, paragraph 12

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Each member

of

the Grand Jury has taken an oath, administered by the Presiding Judge

of

the Superior Court, that mirrors the obligations imposed on the Grand Jury under the Penal

Code:

I do solemnly swear (affirm) that I will support the constitutions of the

United States and the State

of

California, and all laws made pursuant to and in

conformity therewith, and that I will diligently inquire into, and true presentment

make, of all matters presented to the civil grand jury of this county, of which the

civil grand

jury

shall have jurisdiction.

Fmiher, I will not disclose any information or evidence brought before the

civil grand iury, nor anything which I or any other grand juror may say, nor the

manner in which I or any other grand juror may vote on any matter before the

civil grand jury. I will keep the charge given to me by the court.

Declaration at pages 2 3, paragraph 11 and Exhibit B thereto (emphasis added).

STATEMENT OF THE CASE

California law does not specifically provide for a procedure by which a recipient of a

subpoena duces tecum or other request for records from a civil grand jury may challenge the

subpoena or request. While a grand jury need not rely upon a formal subpoena duces tecum, nor

need comply with the requirements

of

Code

of

Civil Procedure section 1985 or other procedural

requirements for the issuance

of

a subpoena duces tecum City ofWoodlake

v

Tulare County

Grand Jury, 197 Cal. App. 4th 1293, 1299 1301 (2011); MB. v Superior Court, 103 Cal. App.

4th 1384 (2002)), the Grand Jury here has chosen to ask the Superior Court to formally issue a

subpoena. Unlike normal civil cases, however, there is no pending case pursuant to which a

2

City ofCarmel-By-The-Sea

v 2014 2015

Monterey County Civil

GrandJwy

Respondent'SPOmts ana-Aulhofil eSinOpposihon

to

Petition..

· · · · ·

Case No.

Ml31242


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1 motion to quash may be brought.

Cf MB.

v.

Superior Court

at 1395 (grand jury subpoena

2 different from subpoena issued in a criminal case).

3 Taking a cue from

City

of

Woodlake

the parties have requested this court to consider a

4 stand-alone petition to quash the subpoena as the appropriate vehicle to consider these issues. In

5

City of Woodlake

the pmiies from whom production was sought had filed various causes

of

6 action seeking to quash production. 197 Cal. App. 4th at 1298 1299. The matter was treated

7 by the trial court

as

a motion to quash and the appellate court considered the decision on the

8 motion a final order from which an appeal would lie.

d.

Here, should the court need to place

9 the petition in the context of a proceeding specifically recognized under California procedure, the

1 comi could consider the petition one for a writ

of

mandate seeking to compel the Grand Jury to

11

withdraw its subpoena, a writ

of

prohibition compelling the City to not respond, or even an

12 action for declaratory relief that the City need not comply.

13

ARGUMENT

14

I.

RULES OF STATUTORY CONSTRUCTION

15 This case largely involves the interpretation and application of statutes. With respect to

the interpretation

of

statutes, the analysis starts from the fundamental premise that the objective

of statutory interpretation is to ascetiain and effectuate legislative intent. . . . In determining

intent [a comi should] look first to the words themselves. . . . When the language is clear and

unambiguous, there is no need for construction. . . . When the language is susceptible of more

than one reasonable interpretation, however, [the comi will] look to a variety

of

extrinsic aids,

including the ostensible objects to be achieved, the evils to be remedied, the legislative history,

public policy, contemporaneous administrative construction, and the statutory scheme ofwhich

the statute is a pmi.

Golden State Homebuilding Associates

v.

City

of

Modesto

26 Cal. App.

4th 601, 608 (1994), citing People

v.

Woodhead

43

Cal. 3d 1002, 1007-1008 (1987). The

provisions must be given a reasonable and common sense interpretation consistent with the

apparent purpose and intention of the lawmakers, practical rather than technical in nature, which

upon application will result in wise policy rather than mischief or absurdity. d., citing

3

City

of

Carmel-By-The-Sea

v. 2014 2015

Monterey County Civil Grand Jury

-Respondent s

Poilus atid Autliorities ilfOpposition foPetttlmc

Case No. Ml31242


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1 In this particular matter, relating to an investigation of an incorporated city within the

2 county, the powers of the Grand Jury arise from Section 925a which states in its entirety:

3 The grand jury may at any time examine the books and records of any

4 incorporated city or joint powers agency located in the county. In addition to any

5 other investigatory powers granted by this chapter, the grand jury may investigate

6 and report upon the operations, accounts,

and

records

of

the officers, departments,

7 functions, and the method or system

of

performing the duties

of

any such city or

8 joint powers agency and make such recommendations

as

it may deem proper and

9 fit.

10 The grand jury may investigate and report upon the needs

of

all joint

11

powers agencies in the county, including the abolition or creation

of

agencies and

12

the equipment for or the method or system

of

performing the duties

of

the

13 several agencies.

t

shall cause a copy of any such report to be transmitted to the

14 governing body

of

any affected agency.

15

As used in this section, joint powers agency means an agency described

16 in Section 6506 of the Government Code whose jurisdiction encompasses all or

17

part

of

a county.

18

III.

19

THE GRAND W Y IS ENTITLED TO THE RECORDS

A

The Grand Jury Need Not Notify The Affected Employees

20 The City criticizes the Grand Jury for failing to notify the employees of the Subpoena.

21 The law is clear, however, that a grand jury need not follow the ordinary procedural

22 requirements for a subpoena duces tecum, including the necessity

of

an affidavit

or

notice

to

23

consumers that is required by Code

of

Civil Procedure section 1985.

City

of

Woodlake

197 Cal.

24 App. 4th at

1301

1302;

M B v Superior Court 103

Cal. App. 4th at

1391 1396.

4

In

25

26

27

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4

The City has included in its proof

of

service persons representing the interests of some

of

the

affected employees. Although not parties hereto,

as

a courtesy the Grand Jury will serve its

responding papers on those same persons.

5

City

of

Carmel-By-The-Sea v 2014 2015 Monterey County Civil Grand Jwy

Case No. Ml31242

· Responoent'SPOmtsano-Auiliorities

i l l

Opposition to

e t i t i ~


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addition, while the affected employees may have a privacy interest in their personnel records, the

law is also clear that such records are the property of the City, and thus subject to the

independent Grand Jury's authority under Section 925a.

Board ofTrustees

v.

Leach

258 Cal.

App. at 288.

5

B

The Authority OfThe Grand Jury To Review Records OfThe City Is

ot

Limited

To Records Of Officers But Extends To Any Records

The City argues that the ability

of

the Grand Jury to review records is limited to records

of

an officer

of

the City, that none

of

the employees for which records were requested are

officers , and therefore the Grand Jury is not entitled to review them. The argument has no

merit and the Grand Jury is entitled to review the records of the City on any matter.

As mentioned above, the authority of a grand jury to investigate matters involving a city

is set forth in Section 925a. The language

of

the first sentence of Section 925a is clear: The

grand jury may at any time examine the books and records of any incorporated city or joint

powers agency located

in

the County. The Grand Jury submits that this unambiguous language

needs no interpretation or construction. The City is an inc_orporated city within the County of

Monterey

6

and has Records that are relevant to the Grand Jury's investigation, and the Grand

Jury is entitled at any time to examine those Records.

The City argues that the first sentence of the section is qualified by the second, which

in

its entirety reads as follows: In addition to any other investigatory powers granted

by

this

chapter, the grand jury may investigate and report upon the operations, accounts, and records of

the officers, departments, functions, and the method or system ofperforming the duties of any

such city or joint powers agency and make such recommendations as it may deem proper and

5

As is more fully discussed in Pmi IV, below, the holding

in Leach

that personnel records of a

school district could not be reviewed by a grand jury, is no longer valid in light

of

amendments

to the Penal Code since that case was decided.

6

See Request for Judicial Notice filed concurrently herewith.

6

City ofCarmel-By-The-Sea

v.

2014 2015 Monterey County Civil Grand JUJy

Respondent'SPomts1rrfd-Authorities

ii1

OppositiOino Petitwn

Case No. Ml31242


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1 fit. The City contends that the Grand Jury

is

thus limited in reviewing records from an officer

2

of

the City, and that the Records are not those of officers.

3 The Grand Jury submits that the second sentence does not in any way qualify the first.

4 The first sentence stands alone; the second sentence merely enlarges the investigatory powers

of

5 a grand jury with respect to incorporated cities that otherwise exist elsewhere in the Penal Code,

6 for example regarding the removal of city officers

as

set fmih in Section 922 and Government

7 Code section 3 060. The legislative history of Section 925a confirms a grand jury's independent

8 and absolute right to records

of

a city on any matter.

9 Section 925a was originally adopted in 1973 through Assembly Bil l1036? The bill

10 added in its entirely a new Section 925a which read:

11 The grand jury may at any time examine the books and records of any

12 incorporated city located in the county, which pe1iain to fiscal matters. In

13 addition to any other investigatory powers granted by this chapter, the grand jury

14 may investigate and report upon the fiscal matters of any such city and make such

15 recommendations as it may deem proper and fit.

16

Stats. 1973, ch. 1036, sec.

3 p.

2385. As originally adopted, the language of the first two

17

sentences was interrelated, and allowed a grand jury to inspect only records relating to fiscal

18

matters in order to report and make recommendation on fiscal matters.

19 Section 925a was later amended to be applicable to joint powers authorities, and fmiher

20 amended in 1983 to its current form. The

1983

amendment removed the limitation on access to

21 records limited to fiscal matters. The Legislative Counsel's Digest for the amendment stated:

8

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The Grand Jury has requested the Court to take judicial notice of the legislative history

of

the

bill, located at Stats. 1973, ch. 1036, pp. 2384 2385.

See

Request for Judicial Notice filed

concurrently herewith.

8

The Grand Jury has requested the Court to take judicial notice of the legislative history of the

1983 amendment, Senate Bill924, located at Stats. 1983, ch. 590, pp. 3752 3753.

See

Request

for Judicial Notice filed concurrently herewith.

7

City ofCarmel By The Sea v

2014 2015

Monterey County Civil Grand Jwy Case No. Ml31242

Respondent s-Paints-rurd-Authorities

in

Opp-o-sitionnrPetition - - -

--- -


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1 Under existing law, a grand jury may at any time examine the books and

2 records

o

any incorporated city or joint powers agency located in the county

3 which pe1iain to fiscal matters.

4 This bill would instead authorize a grand jury at any time to examine the

5 books and records

o

any incorporated city or joint powers agency located in the

6 county with respect to any matter and further authorize the grand jury to

7 investigate and report upon the operations, accounts, and records

o

the officers,

8 departments, functions, and the method or system o performing the duties o any

9 incorporated city or joint powers agency.

10

Stats. 1983,

ch.

590, p. 3752 (emphasis added).

11

The Grand Jury submits that the plain language

o

Section 925a, and its legislative

12 history, make clear that the Grand Jury

is

entitled to review the records

o

the City on any matter,

13 and it is not limited to the records

o

officers

as

the City argues.

14

The City's proffered interpretation fails for another reason: the second sentence allows a

15 grand jury to investigate and repmi on the records not only

o

officers but also the

16 departments, functions, and the method or system o performing the duties

o

a city. Thus, a

17 grand jury is entitled

to

review the records

o

a department

o

a city, which would include a

18 human resources

or

persom1el depmiment, or department

o

a city manager or city administrator,

19

or review records related to the system o carrying out a city's duties, which would include the

20 hiring, firing and handling

o

personnel matters.

21 The City's interpretation would also play mischief with the statutory scheme and

22 legislative intent concerning the powers

o

a grand jury. The following argument is not intended

23

and should not be interpreted

as

indicating the focus or purpose

o

the Grand Jury's investigation

24 into the City, but

is

merely meant

to

be illustrative

o

the circumstances under which a review

o

25

employee records would be necessary. For example,

i

a grand jury was investigating a claim

o

26

mismanagement by a city manager or administrator with respect to the hiring, firing or discipline

27 o

city employees, that grand jury would need to review the files

o

specific employees

o

that

28

8

City

of

Carmel By The Sea

v 2014 2015

Monterey County Civil GrandJwy

Respondent's Points and .Aullrorities in Opposition

to

PetitiOn- - -

-

Case No. Ml31242


14/21

1 city in order to reach conclusions regarding the claim, and report on the matter. Similarly, if a

2 grand jury were investigating the method or system

of

performing human resources functions of

3 a city, that grand jury would need to review how a variety

of

employee matters were handled in

4 order to make recommendations on how that system could be improved. Under the City's

5 proposed construction of Section 925a, a grand jury would be hamstrung

in

its effmis to fulfill its

6 statutory mandate to investigate and report

on

matters involving cities. Cf

Board

of

Retirement

7 v Santa Barbara County Grand Jury 58 Cal. App. 4th 1185 (1997) (position that grand jury may

8 not investigate retirement board that processes retirement applications because board not part of

9 county would be an absurd reading, defy common sense, and create mischief by rendering

1 umeviewable claims of dilatory processing of such applications).

11

The Grand Jury submits it is entitled to review records of the City

on

any matter, and thus

12

the City must comply with the Subpoena.

13

c

The Public Records Act Does Not Limit The Grand Jury's Authority To Review

14 The Records

15 The City contends that the provisions of the California Public Records Act, Government

16

Code section 6250 et seq. ( Public Records Act or Act ), exempts the Records from disclosure

17 to the Grand Jury. This argument is meritless.

18 The City relies on the exemption fi:om disclosure in the Act for personnel, medical, or

19 similar files, the disclosure

of

which would constitute an unwarranted invasion of privacy.

20 Government Code section 6254 (c). A grand jury s authority to review records does not spring

21

from the Act, however,

it

is based on the independent authority

of

the Penal Code,

in

particular

22 Section 925a.

City

of

Woodlake

197 Cal. App. 4th at 1302. The

Act

is therefore not a limitation

23 on the Grand Jury's authority to review the Records.

24 IV.

GRAND WRY SECRECY REQUIREMENTS PROTECT THE PRIVACY

25 INTERESTS OF THE EMPLOYEES AND OFFICIALS

26 The City contends that the employees' constitutional right to privacy prohibits the Grand

27 Jury's review

of

the Records. The argument has no merit. The right to privacy is not absolute,

28 9

City ofCarmel-By-The-Sea v 2014 2015 Monterey County Civil Grand

wy

Respondent'sPofuts ana Authorities

in

OppositiontoPetition

Case No. Ml31242


15/21

1 and must be weighed against the competing interest of the Grand Jury in performing its

2 statutorily authorized duty of

investigating and reporting on matters concerning the City. In this

3 case the interests of the Grand Jury prevail due in large

pmt

to the confidentiality obligations

4 imposed

on

the Grand Jury

by

law.

A.

The Right To Privacy Is Not Absolute

6 The Grand Jury agrees that the employees have a right to privacy under the California

7 Constitution. Gilbert v City ofSan Jose 114 Cal. App. 4th 606, 613 (2003). Privacy interests

8 have two classes: (1) interests

in

precluding dissemination or misuse

of

sensitive and

9 confidential information ('informational privacy'); and (2) interests in making intimate personal

10

decisions or conducting personal activities without observation, intrusion, or interference

11 ('autonomy privacy'). Hill v National Collegiate Athletic Assn. 7 Cal. 4th 1, 35 (1994); Gilbert

12 at 613. In this case, the privacy interest at issue is informational privacy.

13

Constitutional privacy interests are not absolute, however. They must be balanced

14 against other important interests.

Hill

at 37;

Gilbert

at 613. A privacy interest may be

15 overcome if a countervailing interest is substantially fmthered.

Hill

at 40;

Gilbert

at 613.

See

16 also Los Angeles Unified School District v Superior Court 228 Cal. App. 4th 222, 238 (2014)

17 (countervailing interests in privacy and disclosure under the

Public Records Act). Thus, there

18 can be no reasonable expectation

of

complete privacy even with personnel records, as other

19

competing interests may ovenide privacy interests. For example,

in Valley Bank ofNevada v

20

Superior Court

15 Cal. 3d 652 (1975 the Supreme Coutt balanced the right of civil litigants to

21

discover relevant facts against the right to privacy of banl


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1 the public interest in non-disclosure.

Los Angeles Unified School District

v

Superior Court

228

2 Cal. App. 4th 222, 239-240 (2014). Finally,

Michael

v

Gates

38 Cal. App. 4th 737 (1995)

3 found no violation of a peace officer's right of privacy

in

the disclosure of personnel records to a

4 city attorney for

use

as possible impeachment at trial. Thus,

an

employee cannot have a full

5 expectation of privacy in personnel records because they can be publicly released, or released to

6 other public officials, with a proper showing.

7 These cases stand for the proposition that the right to privacy is not absolute and must be

8 balanced against competing interests.

9

B.

Grand Jury Proceedings And Raw Evidentiary Material

Must

Remain

10 Confidential

11 The secrecy of all grand jury proceedings is deeply rooted in our traditions

12

McClatchy

44 Cal. 3d at 1173, quoting

Illinois

v

Abbot t Associates Inc.

460 U.S. 557, 572

13 (1983). [W]hen the grand jury conducts a watchdog investigation oflocal government

14 operations as in the instant case, secrecy appears equally vital [as with a criminal grand jury].

15

McClatchy

at 117

5

Several provisions of the Penal Code provide for civil grand jury secrecy.

16 Section 924.1 provides that it is a misdemeanor for a grand juror to disclose any evidence

17 adduced before the grand jury, or what was said

in

deliberations, or

how

any juror voted.

18 Section 924.2 requires each juror to keep secret what jurors have said and how they voted. Each

19 grand juror here took

an

oath, administered

by

the Presiding Judge, that they will not disclose

20 any information or evidence brought before the civil grand jury nor disclose what jurors have

21 said or

how

they voted.

22 With the impmiance of secrecy in mind, the Legislature has enumerated only three

23 instances

in

which

raw

evidentiary material

may

be disclosed

by

a grand jury: 1)

by comi

order

24 when it is necessary to determine

if

a witnesses testimony before the grand

jury

was consistent

25 with testimony

in

comi; 2) where transcripts

of

indictment proceedings are to

be

delivered to a

26 defendant, and thus available to the public; and 3) where, with the approval of the Superior

27 Court, evidentiary materials from one grand jury are delivered to a succeeding grand jury.

28

City

of

Carmel-By-The-Sea

v

2014 2015 Monterey County Civil Grand

Jwy

Respondent's Points and Authorities

in

Opposition to Petition

Case

No. Ml31242


17/21


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1 not being relevant, but they are entirely relevant and on-point because they discuss the balancing

2 of interests in privacy and grand jury investigations. City ofWoodlake addressed the right of a

3 civil grand jury conducting a watchdog investigation to review peace officer personnel

4 records. The court found that the grand jury was entitled to the records absent a legislative

5 restriction on the ability of the grand jury to access the records. 197 Cal. App. 4th at 1303. The

6 court in that case could discern no such legislative restriction.

7 In

79

Ops. Cal. Atty. Gen. 185 (1996) the Attorney General similarly opined that peace

8 officer personnel records could be reviewed by a grand jury without the need for a subpoena.

9 Significantly, the Attorney General noted that such records were already in the hands of public

10

officials, is the property of a government agency, and release of the material to another public

11 official, the district attorney, does not mean loss of 'confidentiality. '

Id.

at193, quoting 66 Ops.

12

Cal. Atty. Gen. 128 (1983). The Attorney General also noted, citing Michael v.

Gates

supra 38

13

Cal. App.

4th

737, that there was no violation of the right to privacy because an essential element

14 of such a right is the expectation of privacy. Id. at 194 195. Because the personnel records

15 could be disclosed tln·ough a variety of means, and because they were already in the hands of

16

other public officials, there could be

no

reasonable expectation ofprivacy. Finally, the opinion

17 noted that [i]n the hands of a grand jury, peace officer personnel records would remain

18

confidential. Id. at 194.

19 The decision in

Leach

258 Cal App. 2d 281, provides no support for the City's position.

20 In that case, the court interpreted an earlier provision of Section 933.5, applicable to special

21 purpose assessment or taxing districts: A grand jury may at any time examine the books and

22 records

of

any special purpose assessing

or

taxing district located wholly or partly in the county.

23

The court held this language did not give a civil grand jury the authority to demand production

of

24 personnel records of such a district because the investigatory power of the grand jury was limited

25 to the financial affairs of the district. Id. at 287. Subsequently, the Legislature amended Section

26 933.5 to add: and, in addition to any other investigatory powers granted by this chapter, may

27 investigate and report upon the method or system of performing the duties of such district. The

28 3

City

of

Carmel By The Sea

v. 2014 2015

Monterey County Civil Grand

Jwy

Respondent's

Points and

Authorities-in Opposition to Petition

Case No. Ml31242


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1 Attorney General has opined that this, and other amendments to the Penal Code applicable to

2 grand juries, compels a conclusion that the result in Leach is no longer good law, and that a civil

3 grand

jury may pursue an investigation into the method or system

of

performing duties. 78

4 Ops. Cal. Atty. Gen. 290,

294 297

(1995). Personnel records may well

be

relevant to such an

5 mqmry.

6 The cases Board ofTrustees v Superior Court 119 Cal App. 3d 516 (1981) and El

7 Dorado Savings Loan Assn. v Superior Court 190 Cal. App. 3d 342 (1987), cited by the City,

8 are not relevant because they considered different considerations in the context of civil litigation,

9 not grand jury proceedings.

1

Here there is no absolute right to privacy in the Records sought

by

the Grand Jury. The

11 Grand Jury is compelled by law to keep confidential the raw evidentiary material it receives.

12 The privacy interests

of

the affected employees will be protected. Thus the right to privacy is not

13

invaded by production of the Records to the Grand Jury.

14

v.

PRODUCTION OF THE RECORDS TO THE GRAND JURY WILL

NOT

RESULT

N

15 DISCLOSURE TO OTHER THIRD PARTIES

16 The City argues that production of the Records to the Grand Jury will result in compelled

17 disclosure of the Records to other third parties such as the media, presumably through the Public

18 Records Act. This argument was directly refuted by the Supreme Court in

McClatchy

wherein

19

the court held that third party media could not have access to records produced to a civil grand

20 JUI J. 44 Cal. 3d at 1183. The argument has no merit.

21

VI.

A PROTECTIVE ORDER IS NOT NECESSARY

22 The City discusses in it papers the propriety

of

a proposed protective order that was the

23 subject

of

discussion between the parties. Notwithstanding those discussions, the Grand Jury

24 submits that a protective order is unnecessary in this matter because

of

the confidentiality

25 obligations imposed

on grand juries in the Penal Code, as is more fully set forth above. Any

26 protective order would either be duplicative

of

those obligations, or improperly more restrictive.

27

28

14

City ofCarmel-By-The-Sea v 2014 2015 Monterey County Civil Grand wy

Respondent's Points and Authorities in Opposition

to

Petition

Case No. M131242


20/21

1 CONCLUSION

2 The plain language and legislative history of Section 925a compels a conclusion that the

3 Grand Jury is entitled to the Records because it has initiated an investigation into matters

affecting the City and the Records are relevant to that investigation.

n

addition, the

5 confidentiality and secrecy obligations imposed on the Grand Jury will maintain the

6 confidentiality and privacy interests of the employees such that any right to privacy will not be

7 infringed. The petit ion should be denied and, because the end of the Grand Jury s term is

8 approaching, the City should

be

ordered to comply with the Subpoena forthwith.

9

10

11

12

13

14

15

16

17

18

19

2

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23

24

25

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Respectfully submitted,

15

City

of

Carmel By The Sea

v 2014 2015

Monterey County Civil Grand

Jwy

Respondent s Points and Authorities

in

Opposition to Petition

Case No. M131242


21/21

Documents

Respondent's Points and Authorities in Opposition to Petition to Quash Subpoena Duces Tecum