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