Riverside County Sheriff's Department v. StiglitzRiverside County Sheriff's Department v. Stiglitz
Lead Opinion
Opinion
Here we hold that when hearing an administrative appeal from discipline imposed on a correctional officer, an arbitrator may rule upon a discovery motion for officer personnel records, commonly referred to as a Pitchess motion. (Pitchess v. Superior Court (1974)
The Riverside County Sheriff’s Department (the department) fired Deputy Kristy Drihkwater for falsifying her payroll forms. A memorandum of understanding (MOU) between the Riverside Sheriffs’ Association (Sheriffs’ Association) and the county provided for an administrative appeal. The parties chose arbitrator Jan Stiglitz as the hearing officer.
Drinkwater intended to urge a disparate treatment defense, claiming that others had committed similar misconduct but were not fired. Accordingly, she sought discovery of redacted records “from personnel investigations of any Department employees who have been disciplined for similar acts of misconduct.” (See Pegues v. Civil Service Com. (1998)
Drinkwater renewed her motion, supported by counsel’s declaration that 11 named officers had allegedly committed similar misconduct but received little or no discipline. Stiglitz ordered production of the 11 officers’ records for in camera review.
The department sought a writ of administrative mandate in superior court. (See
The Sheriffs’ Association sought to intervene, moving to set aside the mandate order and to secure a new hearing. Intervention was granted. After
Drinkwater and intervener Sheriffs’ Association sought review. In consolidated appeals, the Court of Appeal reversed, distinguishing Brown and criticizing its reasoning. We affirm.
II. DISCUSSION
The department again urges that only judicial officers are authorized to rule on Pitchess motions. That argument fails in light of the governing statutes.
A. The Pitchess Statutes
In Pitchess, this court held a criminal defendant could obtain discovery of certain law enforcement personnel records upon a sufficient showing of good cause. (Pitchess, supra, 11 Cal.3d at pp. 537-540.) “In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code
Penal Code section 832.7, subdivision (a) provides in part: “Peace officer or custodial officer personnel records and records maintained by any state or
Evidence Code
As explained in City of Santa Cruz, Evidence Code
B. Evidence Code
The department observes that Evidence Code
This argument fails for several reasons. First, it simply reads “administrative body” out of Evidence Code
Second, the argument completely ignores the broad definition of “proceeding” in Evidence Code section 901, which includes administrative hearings and arbitrations. Disregarding that section violates the principle that we consider the language of the entire scheme and related statutes, harmonizing the terms when possible. If any ambiguity remains, we may examine the legislative history and the stated purpose of the scheme to guide our
Further, had the Legislature intended that Pitchess motions could only be conducted in the superior court, it could have provided a mechanism to transfer a motion from an administrative proceeding to the superior courts. It did not do so. Evidence Code
While the parties cite no statutory transfer mechanism, amici curiae suggest one may be found through various other provisions. The Los Angeles Police Protective League (the Protective League) points to two statutes that might permit an extraordinary transfer. First, it cites Code of Civil Procedure
This scheme does not apply here. Initially, section 1281.8 only applies to applications by parties. There may be instances in which the custodian of records is not a party to the arbitration. Here, although the department is a
The Protective League also cites a provision of the Public Safety Officers Procedural Bill of Rights Act (POBRA) (
The California State Association of Counties and the California League of Cities suggest a writ of administrative mandate might provide a transfer mechanism. They propose that the hearing officer could begin the Pitchess inquiry under Evidence Code
Such an interpretation would morph the mandate statute beyond its delineated contours. The Code of Civil Procedure permits administrative mandate for inquiry “into the validity of any final administrative order,” but only as to “whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.” (
Section 187 comes into play only when a court has lawful jurisdiction. No statute confers jurisdiction on the superior court to hear a Pitchess motion when, as here, the motion is filed with an administrative hearing officer. Neither Evidence Code
Drinkwater also suggests that “all courts have inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority.” This argument suffers the same defect as the one above. Courts have supervisory authority to “ ‘control
The Legislature did not specify a transfer mechanism in the Pitchess statutes. No other statute or authority exists for such a transfer. Accordingly, we conclude that by expressly permitting filing with an appropriate administrative body in Evidence Code
C. Evidence Code
Evidence Code
The reality that Pitchess motions are so frequently made in the context of criminal prosecutions would explain why Evidence Code
The department argues that Evidence Code section 915 constitutes such a substantive limitation. Evidence Code section 915, subdivision (a) states that in ruling on a claim of privilege, the presiding officer cannot require disclosure of the assertedly privileged information before ruling on the privilege claim. Evidence Code section 915, subdivision (b) provides an exception when the court is unable to rule unless it knows the content of the assertedly privileged information. In such a case, the court may order the disputed information disclosed for review in chambers. The Law Revision Commission’s comments following Evidence Code section 915 noted that “[t]he exception in subdivision (b) applies only when a court is ruling on the claim of privilege. Thus, in view of subdivision (a), disclosure of the
The department observes Evidence Code
Second, section 915 was enacted as part of the original Evidence Code in 1965. The Law Revision Commission’s comment predated both our Pitchess decision and the Legislature’s subsequent codification of it. It is, then, a poor indicator of legislative intent as to the proper scope of the Pitchess scheme. The commission’s comments informed the Legislature’s understanding at the time it enacted the Evidence Code. They did not bar the Legislature from talcing future action, as it did when it amended the code 13 years later following this court’s Pitchess decision. (Cf. Duarte v. Chino Community Hospital (1999)
Third, and most problematic, the department’s interpretation of Evidence Code section 915 suffers from the same defect as its interpretation of Evidence Code
Our conclusion is also consistent with the purposes behind the POBRA. The POBRA, to which these parties have contractually bound themselves, “sets forth a number of basic rights and protections which must be accorded individual public safety officers by the public agencies which employ them.” (White v. County of Sacramento (1982)
Our conclusion is also consistent with the overall aims of the Pitchess scheme. Although the department adamantly argues the sole purpose of the statutes was to rein in Pitchess motions, that characterization is not entirely accurate. As discussed, the Pitchess statutes reflected the Legislature’s attempt to balance a litigant’s discovery interest with an officer’s confidentiality interest. (See Peace Officer Standards, supra,
We emphasize that here there is no question hearing officer Stiglitz, an attorney, is qualified to rule on the Pitchess motion. The MOU provides that a hearing officer be selected from a mutually agreed-upon list. (MOU, art. XII, § 14, subd. A.) If the department believed Stiglitz was not qualified for any reason, it could have removed him from the list or stricken him as an available hearing officer in this case. In any event, the Legislature in Evidence Code section 914 has determined that hearing officers generally have the authority to rule on claims of privilege in the same manner as courts.
Further, we observe that this case reflects several safeguards against improper disclosure of confidential records. The MOU here expressly provides that the administrative hearing is a “private proceeding” between the
An additional confidentiality safeguard appears in Evidence Code
We have also clarified that an officer’s entire personnel file need not be presented for review, only materials of the type requested. (Mooc, supra, 26 Cal.4th at pp. 1228-1230.) In the present case, such materials would be limited to incidents involving conduct similar to Drinkwater’s. This limitation balances privacy interests while permitting focused discovery.
The department does not argue that Drinkwater’s disparate treatment defense is invalid or that the discovery she seeks is irrelevant to that defense. Accordingly, we have no occasion to discuss the availability or scope of such a defense. Drinkwater’s Pitchess motion also named the specific officers whose records she sought, reducing the possibility of an improper “fishing expedition.”
The department relies heavily upon Brown, supra,
E. Evidence Code Section 1047
The department argues that, because the officers whose records Drinkwater has requested had nothing to do with her termination, she is not entitled to discovery. In support, the department cites Evidence Code section 1047, which provides in part: “Records of peace officers or custodial officers . . . who either were not present during the arrest or had no contact with the party seeking disclosure from the time of the arrest until the time of booking, or who were not present at the time the conduct is alleged to have occurred within a jail facility, shall not be subject to disclosure.” The department’s reading of this statute was rejected in Alt v. Superior Court (1999)
Evidence Code section 1047’s legislative history supports Alt’s conclusion. The proponents of the provision urged its purpose was to deter frivolous Pitchess requests made by criminal defendants “as a bargaining tool to
F. The Dissenting Opinion
The dissenting opinion concludes that an administrative hearing officer is empowered to rule on a Pitchess motion, but may not compel production of personnel records for in camera review before it rules. (Conc. & dis. opn., post, at pp. 655-656.) It suggests that if the custodian of records voluntarily produces the records “with the consent of the officer whose personnel records are sought, the matter is at an end.” (Id. at p. 656.) If the custodian refuses to comply, the party seeking discovery may seek to have the matter referred to the superior court. Under the dissent’s proposal, after such a transfer, the court could then review materials in camera to decide whether it should order discovery and make any protective order. (Ibid.)
The dissent cites Evidence Code section 914, subdivision (b), which provides that a person may not be held in contempt for failing to disclose privileged information unless by order of court, and Code of Civil Procedure section 1991, which empowers a hearing officer to report to the superior court a witness’s disobedience to a subpoena or refusal to answer a question and to seek a court order compelling compliance. The dissent suggests this scheme applies to Pitchess motions before administrative hearing officers. (See conc. & dis. opn., post, at p. 657.)
This proposal is inconsistent with the Pitchess statutes. Most fundamentally, under the dissent’s view, an in camera review of personnel records would no longer be required prior to disclosure. Under the cited scheme of section 1991, the superior court would become involved only if the custodian of records refused to comply with the disclosure order. The dissent asserts that if the custodian voluntarily complies with the disclosure order, “the matter is at an end” without any in camera review by anyone. (Concx. & dis. opn., post, at p. 656.)
The Legislature could not have contemplated such a scheme because Evidence Code
Indeed, in enacting the Pitchess statutes, the Legislature amended the bill to specifically eliminate language in earlier versions that made an in camera review optional at the request of the officer or other person who could assert the privilege. (See Sen. Bill No. 1436 (1977-1978 Reg. Sess.) as introduced Jan. 27, 1978, p. 3; Sen. Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Apr. 3, 1978, p. 3; Sen. Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Apr. 17, 1978, p. 3; Assem. Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978, p. 3.) Previous versions of the bill also limited discovery to the identities of complainants and witnesses and, in some circumstances, their statements. They also allowed officers an absolute right not to disclose any privileged information notwithstanding a court’s finding that it was relevant to the litigation at issue. (See Assem. Com. on Criminal Justice, Analysis of Sen. Bill No. 1436 (1977-1978 Reg. Sess.) June 5, 1978, p. 2; Assem. Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978, pp. 4-5.) It was in this context that legislative committee reports provided the assurance that “[a]ll requests for discovery of police personnel records would require that before disclosure could be made the judge would have to review, in camera, the records sought, to determine which if any of them are relevant to the litigation” (Assem. Com. on Criminal Justice, Final Analysis of Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 30, 1978, p. 2, italics added), and “[a]ll requests for discovery would require an in camera hearing at which the court would determine the relevancy of the material sought” (Assem. Com. on Criminal Justice, Analysis of proposed amendments to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 18, 1978, p. 2, italics added, underscoring omitted). This history reflects that, in exchange for allowing broader discovery of officer personnel records and eliminating an officer’s absolute privilege to foreclose discovery of his files, the Legislature considered an in camera review a pivotal and necessary protection for officers. Thus, contrary to the dissent’s suggestion (see conc. & dis. opn., post, at p. 653), the focus of the reports was that an in camera review would
The dissent asserts the Pitchess statutes “ensur[ed] that whenever discovery was opposed, in camera review would follow as a matter of course. ([Evid. Code,]
The dissent suggests an “unfortunate consequence” of our approach is that a nonlawyer might preside over the administrative hearing and “the nonparty peace officer will have no input” into his selection. (Conc. & dis. opn., post, at p. 649.) The dissent further laments that such a person may order disclosure and “formerly confidential records may be opened to inspection.” (Ibid.) These comments find no footing in actual practice. First, a nonparty officer whose records are sought would never have input into who would decide the Pitchess motion, be it a court or an arbitrator. In any case, that concern is completely unfounded here, where the custodian of records, who is obligated to assert the privilege, and the Sheriffs’ Association, which represents the officer, are involved in the litigation. Second, it is simply not so that officer records would be “opened to inspection.” (Conc. & dis. opn., post, at p. 649.) As noted, officer records disclosed at these private proceedings remain confidential under Penal Code
Next, the dissent relies on a repealed provision of the Administrative Procedure Act (APA) (
This reasoning misses the mark. First, the Legislature has expressly stated that officer personnel records “are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to
Second, the Legislature could not have contemplated the former APA procedure would apply to Pitchess motions in administrative hearings for the same reasons it could not have contemplated application of section 1991. Like that procedure, Government Code former section 11507.7 required an aggrieved party to file a discovery motion before the superior court would become involved; if a party complied with the discovery request, the court would never need to rule or view the records in camera. Again, the dissent fails to explain why the Legislature would have expressly required an in
Third, the motion under Government Code former section 11507.7 only applied to discovery violations by parties. (See Gov. Code, former §§ 11507.6 [pretrial discovery obligation of parties], 11507.7, subd. (a).) By contrast, Pitchess motions are directed at “the governmental agency which has custody and control of the records” (
Fourth, the Legislature’s subsequent amendment of Government Code former section 11507.7 presents strong evidence that the Legislature never believed it applied to the Pitchess scheme. As the dissent acknowledges, the Legislature in 1995, as part of a comprehensive overhaul of the APA (see Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006)
Under the dissent’s view, the 1995 amendment to the APA created a distinction between ALJs and non-ALJ arbitrators. Thus, with respect to a Pitchess motion after 1995, an ALJ now can conduct an in camera review of records under Evidence Code
The dissent cannot have it both ways. If the Legislature intended that the 1995 amendment of the APA constituted a substantive modification of the Pitchess scheme, such a change would have constituted a significant departure in the law. Yet the dissent posits this major change resulted solely from
Responding to our discussion of Government Code former
Rather than gleaning legislative intent from general statutes of questionable applicability, the better view recognizes that the Legislature, by expressly allowing Pitchess motions to be filed with an appropriate administrative body under Evidence Code
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
Cantil-Sakauye, C. J., Chin, J., Liu, J., and Willhite, J.,
Notes
Penal Code section 832.8 defines personnel records as any file maintained under an individual’s name by his or her employer, and includes information such as personal data, medical history, employee “advancement, appraisal, or discipline,” complaints or investigation of complaints pertaining to the performance of the officer’s duties, and “[a]ny other information the disclosure of which would constitute an unwarranted invasion of personal privacy.”
Information excluded from disclosure includes complaints regarding incidents occurring five or more years before the event at issue, facts “that are so remote as to make disclosure of little or no practical benefit,” and, in any criminal case, the conclusions of an officer investigating a complaint. (
See Evidence Code
Unspecified statutory references are to the Code of Civil Procedure.
See Shively v. Stewart (1966) 65 Cal.2d 475, 479-480 [
See Evidence Code section 914, subdivision (a) (“The presiding officer shall determine a claim of privilege in any proceeding in the same manner as a court determines such a claim under Article 2 (commencing with Section 400) of Chapter 4 of Division 3.”).
The parties are free to include other protective language in their MOUs, including an explicit agreement that any Pitchess material can only be used in connection with the proceeding in which it is sought.
People v. Memro (1985)
Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Concurrence Opinion
Concurring and Dissenting.- — I agree with the majority that Pitchess*
As of the 1970s, when the Pitchess discovery scheme was enacted, the Legislature had never entrusted administrative hearing officers with reviewing allegedly privileged and confidential documents to determine their discover-ability. Only judicial officers were permitted to examine such documents. The disparity in authority was neither a relic of an older time nor an inadvertent oversight; as recently as 1968, the Legislature had taken the extraordinary step of creating a special statutory transfer mechanism to allow privilege disputes arising in administrative matters to be resolved by the only body authorized to conduct in camera review, a court.
The Pitchess discovery scheme continues this regime. At every turn, Evidence Code
The unfortunate consequence of the majority opinion is this; often, the person presiding over an administrative hearing need not be a lawyer and could be whomever the parties choose; the nonparty peace officer will have no input. On the say-so of such a person, without judicial oversight or any guarantee of a protective order, the peace officer’s formerly confidential records may be opened to inspection. Because the statutory scheme does not compel this regrettable result, I respectfully dissent.
I.
In 1965, the Legislature first codified in one place the rules of evidence. (Stats. 1965, ch. 299, p. 1297.) The new Evidence Code adopted largely verbatim the work of the California Law Revision Commission (Commission), which had been asked to study the possibility of conforming the state’s evidence rules to a set of nationally proposed uniform rules. (Stats. 1956, ch. 42, pp. 263, 265; see Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 3.)
With respect to privilege issues, the commission recognized that questions of privilege might arise in a broad range of proceedings and sought to “remove the existing uncertainty concerning the right to claim a privilege in a nonjudicial proceeding.” (Cal. Law Revision Com. com., 29B pt. 3A West’s Ann. Evid. Code (2009 ed.) foll. § 910, p. 217.) The policy served by privileges would be seriously undermined if “[e]very officer with power to issue subpoenas for investigative purposes, every administrative agency, every local governing board, and many more persons could pry into the
Equally important to protecting confidentiality, the new Evidence Code articulated procedures for how privilege claims would be resolved in nonjudicial proceedings. In general, “presiding officer[s],” broadly defined to include not only judicial officers but also arbitrators and anyone else overseeing a nonjudicial proceeding, could “determine a claim of privilege in any proceeding in the same manner as a court determines such a claim” under the Evidence Code. (§ 914, subd. (a); see § 905 [defining “ ‘Presiding officer’ ”]; Cal. Law Revision Com. com., 29B pt. 3A West’s Ann. Evid. Code, supra, foll. § 905, p. 215.) However, the authority to determine a claim of privilege was subject to two significant limits. First, only a “court,” not just any presiding officer, could “require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers . . . .” (§ 915, subd. (b).) The consequence of this was quite clear: the narrow authorization for in camera review “applies only when a court is ruling on the claim of privilege. Thus, in view of [section 915,] subdivision (a), disclosure of the information cannot be required, for example, in an administrative proceeding.” (Cal. Law Revision Com. com., 29B pt. 3A West’s Ann. Evid. Code, supra, foil. § 915, p. 256.) Nonjudicial in camera review remained forbidden. (See ibid, [the statute’s broad limits on in camera review “codif[y] existing law”].)
Second, recognizing the risk of error inherent in having nonjudicial officers make privilege determinations, the commission and Legislature withheld the power to issue enforceable orders on privilege matters. Orders to disclose issued by such officers carried no risk of contempt for noncompliance. (§ 914, subd. (b).) Instead, parties seeking discovery needed a court order compelling disclosure. (Ibid.; see Assem. Com. on Judiciary com., reprinted at 29B pt. 3A West’s Ann. Evid. Code, supra, foll. § 914, p. 254 [“What is contemplated is that, if a claim of privilege is made in a nonjudicial proceeding and is overruled, application must be made to a court for an order compelling the witness to answer.”].) This detour to court was necessary “to protect persons claiming privileges in nonjudicial proceedings. Because such proceedings are often conducted by persons untrained in law, it is desirable to have a judicial determination of whether a person is required to disclose information claimed
In 1968, the Legislature codified procedures for discovery in proceedings under the Administrative Procedure Act (APA;
This, then, was the landscape in 1978 when the Legislature enacted the Pitchess discovery statutes. Claims of privilege could be raised in judicial and nonjudicial settings alike. (§ 910.) Courts and nonjudicial presiding officers could rule on these claims. (§ 914, subd. (a).) Courts had authority to rule on claims of privilege following in camera review. (§ 915, subd. (b).) Presiding officers, other than court judges, did not; they were required to issue rulings without directly inspecting assertedly privileged materials. (Id., subd. (a); see § 905 [defining “ ‘Presiding officer’ ”].) Moreover, compliance with nonjudicial privilege rulings was not inherently compulsory. (§ 914, subd. (b).) Persons possessing assertedly privileged documents could not be required to allow nonjudicial officers to examine them and could not be forced to disclose them without review by an actual court.
The statutory scheme offered a path to resolution of any privilege dispute by the only entity entrusted to conduct in camera review and issue binding rulings — the court. If discovery was sought and refused on grounds of privilege in a proceeding covered by the APA, the party seeking discovery could file a petition in superior court under Government Code former
II.
In Pitchess, supra,
As an initial matter, the text plainly authorizes Pitchess discovery in nonjudicial proceedings.
Nothing in the text of
Of note, the Legislature has been precise in its choice of terminology elsewhere in the Evidence Code and, indeed, in the very legislation at issue. (See §§ 905 [specially defining “ ‘Presiding officer’ ” to encompass all hearing officers, as distinct from judges or courts], 914 [making distinct and differential use of the terms “presiding officer” and “court”], 915 [same], 1043 [referring to a “court or administrative body” (italics added)].) We should not lightly presume the Legislature was any less precise in
The legislative history supports the plain meaning of the text. The purpose of the new statutes was to “protect peace officer personnel records from discovery in civil or criminal proceedings” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1436 (1977-1978 Reg. Sess.) as amended Apr. 3, 1978, p. 1) by creating a new privilege limiting their disclosure (id. at pp. 4-5). In committee report after committee report, assurances were offered that peace officers could not be forced to surrender this newly created privilege until a judge had reviewed materials in camera. (E.g., id. at pp. 3-5; Assem. Com. on Criminal Justice, Analysis of Sen. Bill No. 1436 (1977-1978 Reg. Sess.) as amended Aug. 7, 1978, p. 2; Assem. Com. on Criminal Justice, Analysis of Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Final Analysis, pp. 1-2.)
That the Legislature knows how to authorize nonjudicial officers to conduct in camera review of privileged documents, and says so expressly when that is its intent, is further illustrated by how the Legislature later handled nonjudicial privilege review under the APA. In 1995, in response to recommendations from the Commission, the Legislature substantially updated and modernized the APA. (Stats. 1995, ch. 938, p. 7104; see Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006)
Curiously, the majority imputes to me the view that a Government Code former
Turning the interpretive question on its head, the majority asks whether
The Legislature has taken pains historically to identify and limit who may conduct in camera review. Nothing in the text or history of the Pitchess discovery statutes authorizes us to undo that effort. We should honor the language the Legislature has chosen by giving it effect.
III.
If, as I conclude,
As noted, this dispute arises in a non-APA proceeding; no administrative law judge is involved, and nonjudicial officers other than administrative law judges have no power to issue protective orders, nor any authority to conduct in camera review. (§ 915, subd. (b); cf.
As has also always been the case, a nonjudicial order directing discovery is not self-executing. If the custodian of records voluntarily complies, with the consent of the officer whose personnel records are sought, the matter is at an end. If the custodian does not comply, or the party seeking discovery believes compliance has been only partial, no immediate sanction is available, but the party requesting discovery may seek referral of the matter to the superior court in the county where the administrative proceeding is ongoing. (§ 914, subd. (b);
The majority criticizes this view of the governing statutes as permitting compelled discovery without in camera review, as required by
To support its view that “shall examine” in
The majority also would find no statute currently authorizes transfer of a discovery dispute from a nonjudicial setting to a judicial setting, and in the absence of such a mechanism would read broad new powers for nonjudicial officers into
Here, the majority again imputes to me, and then refutes, a position I do not assert in connection with a scenario not before us: that if this were an APA proceeding, the appropriate course necessarily would be to seek discovery under Government Code
IV.
Applying the foregoing framework to the instant case, I agree with the majority and the Court of Appeal that former Deputy Kristy Drinkwater can seek Pitchess materials through a motion filed with the nonjudicial hearing officer reviewing her termination. I cannot agree that the nonjudicial officer has authority to demand their production for in camera review. To so hold unjustifiedly eviscerates the protections in sections 914, 915, and 1045 that ensure judicial officers, and judicial officers alone, will conduct privilege review. Instead, any determination that good cause for discovery has been
I respectfully dissent.
Baxter, J., concurred.
Pitchess v. Superior Court (1974)
All further unlabeled statutory references are to the Evidence Code.
The commission’s recommendations were delivered to the Legislature, which expressly endorsed the commission’s commentary as reflecting its own intent unless otherwise noted. (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 333 (1965 Reg. Sess.) 1 Assem. J. (1965 Reg. Sess.) p. 1712; Sen. Com. on Judiciary, Rep. on Assem. Bill No. 333 (1965 Reg. Sess.) 2 Sen. J. (1965 Reg. Sess.) p. 1573.) Consequently, “with respect to unchanged sections of the Evidence Code the commission’s comments state the intent of the Legislature regarding those sections.” (Arellano v. Moreno (1973)
Stressing the importance of section 915’s safeguards, the Commission explained in camera disclosure will frequently be wholly prohibited, and even when it is allowed, “[s]ection 915 undertakes to give adequate protection to the person claiming the privilege by providing that the information be disclosed in confidence to the judge and requiring that it be kept in confidence if it is found to be privileged.” (Cal. Law Revision Com. com., 29B pt. 3A West’s Ann. Evid. Code, supra, foll. § 915, p. 256.)
The majority is quite right to note no special focus was placed on who would conduct the review (maj. opn., ante, at pp. 643-644), the reason being no special focus was needed; the various bill analyses, like the text of