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No.: F060737
IN
THE COURT
OF
APPEAL
OF
THE
STATE
OF
CALIFORNIA
FIFTH DISTRICT COURT OF APPEAL
)
CITY OF WOODLAKE,
ET
AL. )
Case No.: F060737
)
Plaintiff/Respondent, )
)
Tulare County Superior Court
Case No.: VCU 237194
v
)
)
TULARE COUNTY GRAND JURY, )
)
Defendant/Appellant. )
Appeal from the Superior Court
of Tulare
County
Before
the
Honorable Lloyd L. Hicks,
Judge
Presiding
. RESPONDENT'S
RIEF
Thomas T. Watson ( 144457)
FIKE WATSON -
40 1 Clovis A venue, Ste. 208
Clovis, California 93612
Telephone: (559) 229-2200
Attorneys for Plaintiff/Respondent,.
CITY OF WOODLAKE
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T BLE OF CONTENTS
I
INTRODUCTION . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 1
II. STATEMENT OF APPEALABILITY 2
III. STATEMENT OF THE CASE AND FACTUAL BACKGROUND - 4
IV. STANDARD OF
REVIEW
5
V. ARGUMENT . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . .. . . . ... 5
A CIVIL GRAND JURY SUBPEONAS MUST COMPLY
WITH CODE OF CIVIL PROCEDURE SECTON 1985 b) .. . . . . 5
B. THE SUPERIOR COURT CORRECTLY INTERPRETED
THE LANGUAGE FROM THE
TUL RE COUNTY
CASE . . . 9
VI.
CONCLUSION . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 10
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T BLE O UTHORITIES
Page
Ahems v. Evans
1942) 42Cal.App.2d. 738, 739 . . . . . . . . .. . . . .. . . . . .. . .. . .. . .. . .. . . . . . . .. . 2
Haynie v. Superior Court
t
2001) 26 Cal.4 1061, 1068 .
.. 7
In re: Tobaco II Cases
2009) 46 Cal.4
1
298, 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
5
M.B. v.
Superior Court
2002) 103 Cal.App.4
1
1384, 1394 .. . . .. .. . . . . .. . . .. . .. . .. .. . . .. 9, 10
People v. Mazurette
2001) 24 Cal.4
1
h
789, 792 . . . . . . . .. . . . . . . . .. .. . . . .. . .. . . .. . .. . . . . . .. .. ... 3
People v. Totari
2002) 28 Cal.4
1
879,881 3
People v. Superior Court 1973 Grand Jury)
1975)
13
Cal.3d 430, 439 .. . .. . . .. .. . . . ... .. 5
People v. Superior Court Tulare County)
2003) 107 Cal.App.4th488 2,
6 7 9
11
Pitchess
v.
Superior Court
1974) 11 Cal.3d 531, 535 .. ...
10
State
v.
Pet Food Express
2008) 165 Cal.App.4th 841, 849 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
William
v.
Superior Court
1993) 5 Cal.4th 337, 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 7
ST TUTES
Code ofCivil Procedure Section 1985 b) 1 5, 6,
8
9 10
Code of Civil Procedure Section 1987.1 5
Government Code Section 6254 f) . .. .. . . . . . . . . . . . .. .. . . . . .. .. . .. .. . .. . .. . . . .. 7
11
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Penal Code Section
832 7
7
Penal Code Section 888
.
6
Penal Code Section 904 6 10
Penal Code Section 925a . .. . .. .. .. . .. .. 6 10
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH DISTRICT COURT OF APPEAL
Case No.: F060737
CITY OF WOODLAKE, ET AL. )
Plaintiff/Respondent, )
Tulare County Superior Court
Case No.: VCU 237194
V )
TULARE COUNTY GRAND JURY, )
RESPONDENT S BRIEF
Defendant/Appellant. )
I
INTRODUCTION
The City
of
Woodlake ( WOODLAKE ) contends that the Tulare County
Superior Court was correct in quashing the subpoena duces tecum requested by the
Tulare County Grand Jury (TCGJ) for failure to comply with the clear
requirements ofCCP Section 1985(b). As the Honorable Lloyd Hicks noted in
the ruling that has been appealed from:
Code
of
Civil Procedure Section
1985
prescribes the
procedure for requiring production
of
documents by
subpoena. That procedure includes that requirement of
serving with the subpoena an affidavit showing good cause
for the production. The Legislature has made no exception to
this requirement for civil grand juries, and the Court declines
to substitute its judgment for that of the Legislature, and
create an exception where the Legislature did not. (Clerk's
Transcript (CT) 91, lines 22-27).
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In this case, the Tulare County Civil Grand Jury requests unfettered access
to records of a government agency, based upon its watchdog function. This
astonishing attempt to ignore the precedents
of
this court and the Legislature
should be clearly denied.
The TCGJ was previously admonished y this court for overstepping its
proper function of reviewing administrative, judicial and municipal agencies in the
case ofPeople
v
Superior Court (Tulare County) (2003) 107 Cal.App.4th 488
(hereinafter Tulare County ). In that case, this court held that the TCGJ is
required to comply with statutes in conducting investigations of governmental
agencies. (Tulare County, supra at 496). This court should again require the
TCGJ to comply with the Code ofCivil Procedure while performing its
watchdog function.
II STATEMENT OF APPEALABILITY
TCGJ contends that the order of the Tulare County Superior Court
quashing a subpoena duces tecum is a final order that is appealable, because it is a
final determination of the rights
of
the parties in an action or proceeding.
(Appellant's Brief, page 3). However, Aherns
v
Evans (cited in Appellant's brief)
is clear that an order quashing a subpoena duces tecum is not an appealable order.
(Aherns v Evans (1942) 42 Cal.App.2d 738, 739).
The Appellants reliance on State v et Express is misplaced. In that case,
the court is making determinations regarding the grant of a motion to compel
compliance with an administrative subpoena. To restrict the appealability of such
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an order is to remove any appellate review regarding the court's coercion
o
compliance. In this case, the TCGJ had the option
to
comply or file a writ
i
it
believed that the court acted outside the scope o its authority.
t is settled that the right o appeal
is
statutory and that a
judgment or order
is
not appealable unless expressly made so
by statute. '
(People
v
Mazurette
(2001) 24 Cal.4th 789, 792
[
102
Cal.Rptr.2d 555,
14
P.3d 227].) (People v Totari
(2002)
28 Ca1 4th
876,
881
[123 Cal.Rptr.2d 76, 50 P.3d
781].)
State v Pet Food Express
(2008)
165
Cal.App.4th 841,
849 (hereinafter
State ).
In
State
and the cases cited therein, the courts determined that a grant
o
a
motion compelling compliance with an administrative subpoena was an appealable
order. However, Appellant provides no statutory or case authority to support the
grant o a motion
to
quash the subpoena
is
likewise appealable. This
is
not a final
order
as
there has been no final adjudication between the parties. The remedy to
this order was not an appeal, but rather
to
issue the subpoena in compliance with
the Tulare County Superior Court order, which provided that WOODLAKE would
have a 1987
1
remedy i it still contests the cited good cause as to any o the
requested records. (CT 93, lines 9-10). The alternative
to
providing a subpoena
duces tecum with good faith affidavit, i TCGJ believed that the Tulare County
Superior Court acted outside the scope
o
its authority, was to seek a writ from this
court, not an appeal.
n
short, there is
no
basis to make the leap
o
faith that the superior
court's order
is
a fmal determination o the rights o the parties and, therefore,
is
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appealable .. . (Appellant's brief, page 3). This court should dismiss this appeal
on the above basis.
III STATEMENT
OF
THE
CASE AND FACTUAL BACKGROUND
This case arose regarding individual subpoenas and a subpoena duces
tecum to WOODLAKE that was issued by the 2009-2010 Tulare County Grand
Jury.
As
a result
of
a citizen's complaint, an investigation into an accidental
shooting was undertaken by the TCGJ. (CT 1-2). On April 8 2010, the TCGJ
issued a subpoena duces tecum without an affidavit of good cause. (CT 29 and 73,
lines 14-15). The subpoena duces tecum commanded that the City of Woodlake
Police Department bring documents, including: certification
of
the range master
and internal investigation
of
the January 16, 2009 incident. (CT 29). In response,
WOODLAKE filed a Petition for Writ of Prohibition in the Tulare County
Superior Court. (CT 1-5). Rather than responding to the Petition for Writ, TCGJ
preemptively filed an ex parte (rather than noticed) motion for an order to show
cause for sanctions. (CT 111-128).
t
is interesting to note that the sanction
request was grounded in the provisions of the Code
of
Civil Procedure. (CT 126,
lines 8-27). The two cases were consolidated as Tulare County Superior Court
case number 10-237194. The court determined that the pleadings should be
determined as a motion to quash the subpoenas. (Reporter's Transcript, page 6).
Following briefing and oral argument on the matter, the Tulare County
·Superior Court issued a ruling on the submitted matter. In his ruling, the
Honorable Lloyd Hicks found against WOODLAKE on the individual subpoenas
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conditions as the court may deem appropriate. As a result, there are inherent
limitations on the power and authority o a civil grand jury.
A civil grand jury
is
an entity created by the Penal Code, beginning with
Section 888. The civil grand jury is limited
to
performing the following functions:
The grand jury may at any time examine the books and
records o any incorporated city or joint powers agency
located in the county. In addition
to
any other investigatory
powers granted by this chapter, the grand jury may
investigate and report upon the operations, accounts, and
records o the officers, departments, functions, and the
method or system
o
performing the duties o any such city or
joint powers agency and make such recommendations
as
it
may deem proper and fit. (Penal Code Section 925a).
The Legislature mandated that a civil grand jury, in its watchdog
function, may make recommendations in a report. This limited authority
undercuts the basis for any alleged confidentiality that would be impaired by
compliance with CCP Section 1985(b . The authority vested under in a civil grand
jury by the Penal Code
is
to observe and report. Should further action be
necessary or appropriate, the civil grand jury may refer issues to the District
Attorney o the subject county for investigation and/or prosecution.
The Legislature has set forth
no
civil grand jury exception
to
the good
faith affidavit requirement o CCP Section 1985(b . Although TCGJ contends that
the Legislature provided intent that the grand jury be given unfettered access to
examine public records, the holding in the case
o
Tulare ounty
is
clear that this
court has rejected such an argument.
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The
Tulare ounty
case dealt with a conflict between the confidentiality
of
juvenile court records and TCGJ s mistaken belief that all documents are open to
them without compliance with statutory requirements. In this case, TCGJ has
sought records
of
WOODLAKE that are confidential. A review of the subpoena
duces tecum at issue (CT 29) shows a similar conflict in this case. A request for
certification of a peace officer is a request for peace officer personnel records,
which is made confidential
by
Penal Code Section 832.7.
A request for the internal investigation
of
the shooting incident
is
a
request for investigation records
of
a police agency, which is exempt from
disclosure pursuant to Government Code Section 6254(f).
Haynie v Superior
ourt
(2001) 26
Ca1 4th
1061, 1068. The exemption from disclosure extends
indefinitely, even after closure
of
the investigation.
William v Superior ourt
(1993) 5
Cal 4th
337, 355. While those cases dealt with the Public Records Act, it
is the very basis
of
why a good faith affidavit must be required
of
a civil grand
jury investigation.
Appellant apparently relied on the Code
of
Civil Procedure to attempt to
enforce the subpoena duces tecum
n
its ex parte application for an order to show
cause re: sanctions. (CT 124-128). WOODLAKE contends that TCGJ cannot
enforce a subpoena
by
invoking the provisions
of
the Code
of
Civil Procedure,
without complying with the same requirements for the issuance thereof. To allow
the TCGJ to pick and choose which provisions
of
the Code
of
Civil Procedure it
deems expedient to comply with is to allow the watchdog
off
the leash. Having
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chosen to enforce its subpoena duces tecum with a civil penalty, it has chosen the
rules under which it should be governed, including the requirement of a good faith
affidavit.
From a public policy standpoint, a good faith affidavit would alert a
government agency as to whether exempt
or
non-exempt items were being sought
and, if necessary, allow for a challenge to the subpoena on the basis of confidential
records could be undertaken. Additionally, as in this case, the court could fashion
a remedy
y
requiring a protective order to protect the confidentiality
of
any
subpoenaed documents. (CT 93, lines 8-9). Following the procedure specified
y
the Legislature to obtain documents under a subpoena duces tecum would not
inhibit or prevent a civil grand
jury
from performing its watchdog function.
Rather, it serves to promote the public policy that maintains inviolate confidential
information and documents that the Legislature has deemed exempt from
disclosure. Such a policy also allows the government agencies to comply with the
myriad
of
laws, statutes and regulations relating
t
documents, including notice
provisions to third parties, the Legislature has imposed upon them.
Appellant contends that the confidential nature of a civil grand jury
investigation relieves them
of
the obligations to provide a good faith affidavit,
necessary under CCP Section 1985(b). However, the Tulare County Superior
Court made factual determinations that are critical in the review of this very issue.
Judge Hicks determined the following facts:
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Here, per the declarations, the jury is function in its capacity
of investigating a civil complaint. That citizen, having filed
for public record a declaration detailing the complaint, which
was promptly repeated in the press, has abrogated any chance
of confidentiality relating to the charges. (CT 90, lines 12-
15).
These factual findings undercut the basis for the alleged necessity for
confidentiality that would preclude compliance with CCP Section 1985(b). In
light
of
the above arguments, in the factual and legal context of this case,
WOODLAKE respectfully requests this court affirm the Tulare County Superior
Court.
B
THE SUPERIOR OURT ORRE TLY INTERPRETED THE
LANGUAGE FROM THE TULARE COUNTY CASE.
Appellant contends that Judge Hicks relied on dicta from the case
of Tulare
County However, there is no specific showing that the superior court relied on
the
Tulare County
case as the basis
of
the ruling. Rather, the court went to
considerable lengths to identify the differences between a civil and criminal grand
jury in the context of the case.
After reviewing the holdings
of
both the Tulare County and
MB v
Superior Court cases, Judge Hicks stated that:
The Legislature has made no exception to this requirement for
civil grand juries, and the Court declines to substitute its
judgment for that of the Legislature, and create an exception
where the Legislature did not. (CT 91, lines 25-27).
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The court was specific that it rejected the policy arguments
of
the TCGJ,
not relied
on
either case, for its determination that the Legislature had not provided
a civil grand jury exception to the requirements
ofCCP
Section 1985(b).
M.B.
v
Superior Court
does not change the outcome in this case. In
M.B.
the court held that
criminal
grand
jury
subpoenas duces tecum do not need to
comply with the requirements
ofCCP
Section 1985(b).
MB. v Superior Court
(2002)
1 3
Cal.App.4th 1384, 1394). For the policy reasons set forth at
considerable length in
MB.,
the appellate court determined that civil procedure
requirements are not applicable in criminal cases. (See also Pitchess
v
Superior
Court (1974) II Cal.3d 531, 535).
Thus,
M.B.
does not immunize
civil
grand juries from compliance with the
Code
of
Civil Procedure. The TCGJ has failed to provide any policy basis or case
authority to justify the astonishing proposition that a civil grand
jury
is exempt
from the requirements of the Code of Civil Procedure. After all, the end result of a
civil grand jury investigation is to render a report with recommendations to
improve governmental functions, not a criminal indictment (Penal Code Sections
904.6 and 925). For the reasons set forth above, WOODLAKE contends that such
an investigation resulting in a report is not hampered at all by providing an
affidavit
of
good faith, detailing the reasons for a request for documents.
VI.
ON LUSION
Once again, the TCGJ requests this court
to
allow it to be afforded
unrestricted access to the identified records with no questions asked because
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it
is
a grand jury and there is a public interest in the unfettered investigative power
o
the grand jury...
Tulare County, supra,
at 493). This court soundly rejected
that argument o the Tulare County Grand Jury in 2003 and should do the same in
2011.
The issues raised in this case are not properly before this court as the Tulare
County Grand Jury has appealed from a non-appealable order. Notwithstanding
that defect, in the factual context
o
this case, and in light
o
the legal framework,
the City o Woodlake respectfully requests that this court affirm the decision o
the Tulare County Superior Court.
Dated: January
6
2011
R e s p e c t f u J l y . _ . S ~ t e d
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·
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_
/ . . .- ~
By: . /
THOMAS
T.
WATSON
FIKE WATSON
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CERTIFICATE OF RULE 8.204 c) l)COMPLIANCE
Case: City
of
Woodlake v Tulare County Grand Jury
Fifth Appellate District Case No.: F060737
Tulare County Case No.: VCU 237194
I certify pursuant to California Rule of Court 8.2 04( c)( 1 , that I used Microsoft Word s
word counting feature and Respondent s rief contains 2,600 words.
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PROOF OF SERVICE
(Code Civil Procedure,§§, 1013, subd.
a,
and 2015.5)
I declare that I am a citizen
of
the United States
of
America and a resident
of
the
County of Fresno, California. I am over the age of 18 years and not a party to this
action; my business address is 401 Clovis Ave., Ste. 208, Clovis, California 93612.
On January
7
,
2011, I caused to be served the attached RESPONDENT S
BRIEF, on each oftfi interested parties in said cause as indicated below:
X)
(BY REGULARMAIL
I caused a copy of said pleadings to be placed in a
United States mail depository with postage fully prepaid aodresses as set forth
below. I am readily familiar with
my
office s practice
of
collection and processing
correspondence for mailing. It is deposited with the U.S. Postal Serv1ce on the
same day in the ordinary course of business. I
am
aware that on motion
of
party
served, service is presumed invalid
if
postal cancellation date or postage meter
date is more than one day after the date of deposit for mailing.
Tulare County Superior Court
1
COPY)
Hon. Lloyd Hicks
County Civic Center
221 S.
Mooney Blvd.
Visalia, California 93291
Phillip
J.
Cline 1 COPY)
Tulare County District Attorney
John F. Sliney, Deputy District Attorney
221
S.
Mooney Blvd., Room 224
Visalia, California 93921
Supreme Court ofCalifornia (4 COPIES)
350 McAllister Street
San Francisco, California 94102
I declare that I am employed in the office
of
a member of the bar
of
this court at
whose direction the service was made.
I declare under penalty
ofperjury
under the laws of the State
of
California that the
foregoing is true and correct and that this declaration was executed on January 1_ 2011,
at Clovis, California.
~
-/
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