RIVERSIDE COUNTY SHERIFF'S DEPARTMENT v. STIGLITZRespondent’s Letter BriefCal.April 29, 2014 LAW OFFICES FERGUSON, PRAET & SHERMAN A PROFESSIONAL CORPORATION 1631 EAST ‘8TH STREET SANTA ANA, CALIFORNIA 92705-7101 TELEPHONE(714) 953-5300 FAX (714) 953-1143 April 28, 2014 Clerk of the California Supreme Court 350 McAllister St. San Francisco, CA 94102-7303 Re: Court Ordered Letter Brief of Petitioner, Riverside County Sheriff's Department Riverside County Sheriff's Dept. v. Jan Stiglitz, Case No. S206350 The Court has directed the parties to file supplemental letter briefs to address the following questions: Assuming that a motionfor discovery ofofficer personnel records may befiled in an administrative proceeding (Evid. Code § 1043, subd. (a), and a hearing officer has authority to determine that the motion states good causefor discovery (Evid. Code § 1043, subd. (b)(3)), is there any existing statutory mechanism that would allow the matter to be transferred to the superior courtfor an in camera review ofthe records by ajudicial officer (Evid. Code § 1045, subd. (b))? Ifno existing statutory mechanism applies, do we have the authority to create such a transfer mechanism? The short answerto both of these questions is “probably not”. While the Department had previously addressed the prospect of allowing non-judicial hearing officers to make the threshold determination of good cause under Evid. Code § 1043(b)(3) [Reply Brief, p. 15-16], the Court has correctly identified the glaring absence of any mechanism which would then transfer such matters to the superior court for the undeniably exclusive role of conducting the in camera inspection of the confidential peace officer personnelfiles at issue. 1. There Is No Statutory Mechanism to Transfer Matters To The Superior Court For In Camera Review. As morefully set forth in the Department’s Opening Brief (p. 5-7), the First District Court of Appeal properly observed in Brownv. Valverde, (2010) 183 Cal.App.4th 1531, 1549, that the statutory scheme governing DMVhearings did not contemplate or allow for administrative hearing officers to entertain any aspect of Pitchess motions. In the instant context of peace officer disciplinary appeals, the governing statutory scheme (Govt. Code § 3304(b)) Clerk of the Supreme Court Re: Riverside Co. Sheriff's Dept. v. Jan Stiglitz, Case No. S206350 April 28, 2014 Page 2 similarly lacks any statutory provision which even contemplates, much less expressly authorizes, the presiding hearing officer to entertain even a determination of good cause for discovery of confidential peace officer personnelfiles belonging to officers wholikely havelittle or no involvementorinterest in the petitioning officer’s case beyond having once been disciplined for presumably similar misconduct. As such, it remains rather clear that the statutory scheme governing all phases of Pitchess discovery waslegislatively limited exclusively to judicial officers (perhaps including administrative law judges). However, since the Court has asked the parties to assumethat a hearing officer has the authority to entertain a Pitchess motion maketheinitial determination of good cause for discovery (Evid. Code § 1043(b)(3)), the Department diligently searched for a statutory mechanism which mightfacilitate transfer of the matter to the superior court for the statutorily mandated in camera review of the actual records by the required judicial officer. Although the Departmenthad atfirst thought that the pre-litigation discovery provisions of Code ofCivil Procedure § 2035.010 might provide a mechanism for transferring a matter to the superior court without the need for an underlying action, subd. (b) expressly precludes the use of that statutory process for the purpose of ascertaining the possible existence of a defense. (i.e. the precise reason Respondent, RSA,has advancedas the need for Pitchess discovery in disciplinary hearings.) Frankly, the omission of any mechanism for transferring good cause determinations from non-judicial hearing officers to the superior court within the statutory scheme encompassing the well-established Pitchess process is strong evidence that the Legislature never intended for any aspect of such discovery matters to be entertained in any forum other than the clearly outlined exclusive jurisdiction of the courts. On the contrary, had the Legislature intended for non- judicial hearing officers to make good cause determinations andthentransfer the files to the superior court for its mandated exclusiverole of in camera review,it would havelegislated the transfer mechanism into the statutory scheme. However,it didn’t and the absence of such a statutory mechanism must presumethe Legislature’s intent not to create one. People v. Drake (1977) 19 Cal.3d 749, 755. 2. The Inherent Powers of the Court Do Not Include the Authority to Legislate Non- existent Jurisdiction. Since the Legislature elected to not create or even contemplate any statutory mechanism to transfer good cause determinations from non-judicial hearing officers to the superior courts, this Court has long madeit clear that “the judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate the wisdom ofthe policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting lawsis a legislative function.” Marine Forests Society v. California Coastal Com., (2005) 36 Cal. 4th 1, 25. Clerk of the Supreme Court Re: Riverside Co. Sheriff's Dept. v. Jan Stiglitz, Case No. S206350 April 28, 2014 Page 3 Evenif this Court was to somehowtry to fashion its own transfer mechanism underits umbrella ofjudicial interpretation, the parameters of such a process would require suchstrict guidelines that the benefits of such a solution would be far outweighed by the collateral issues it would create. For example: While the current Pitchess process originating entirely within the courts requires an underlying action with all of the accompanying proceduralrules, there are no corresponding procedural safeguards in administrative appeals before non-judicial hearing officers. In other words, this Court would needto establish very clear guidelines as to when an officer could eveninitiate a good cause motion in an administrative appeal process. Could the officer file such a motion during the investigative phase of an internal investigation and before administrative charges were even filed? Probably not. [See: Pasadena POA v. Pasadena (1990) 51 Cal.3d 564] Once a non-judicial hearing officer theoretically issued a finding of good cause during an administrative appeal, scheduling of the in camera review in the superior court would present its own series of challenges. Would the administrative hearing presumably be postponed while awaiting a hearing date from the court? Would such referrals from hearing officers somehowtakepriority in the superior court or would they be at the mercy of the schedules of already over burdened judges? While the determination of good cause for the discovery of personnelfiles for officers involved in the underlying action has been carefully defined by the courts in criminal and evencivil proceedings [e.g. People v. Memro (1985) 38 Cal.3d 658], allowing non-judicial hearing officers to make such a determination under Evid. Code § 1043(b)(3) for officers who are not even involved in the pending appeal would put these hearing officers in the unenviable and uncontrolled position of rendering unprecedented andlikely inconsistent rulings. Needless to say, the appellate courts would eventually be required to establish a completely new set of good cause guidelines never before contemplated by the Legislature or the courts. Regrettably, this Court is painfully aware of the already overcrowded dockets of the superior courts and further subjecting them to a flood of unregulated Pitchess motions from non-judicial hearing officers would unduly burden the courts with actions never contemplated by the Legislature. Clerk of the Supreme Court Re: Riverside Co. Sheriff's Dept. v. Jan Stiglitz, Case No. S206350 April 28, 2014 Page 4 ° Asnoted in the Department’s Opening Brief(p. 8), the fact that the Legislature added Evid. Code § 1047 to the Pitchess statutory scheme summarily to preclude discovery of personnel files for uninvolved officers defeats the need to create a mechanism to transfer such administrative matters to the superior court. By definition, the only confidential peace officer personnel files RSA is seeking are those of officers who were neverinvolved in the appealing officer’s case. These are the very officers who the Legislature sought to protect from unnecessary annoyance, embarrassment or oppression. Evid. Code $ 1045(d). Rather coincidentally, the current statutory scheme encompassing the Pitchess process waslegislated in response to this Court’s landmark decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531. If RSA and other labor organizations wish the Pitchess process to extend to non- judicial hearing officers in administrative appeals, the remedy lies with the Legislature and not this Court. While the Department sincerely hopes to have answered this Court’s supplemental question, it is also respectfully urged that the Court recognize that the current Pitchess process wassimply never intended to extend to any phase of an administrative appeal presided over by a non-judicial hearing officer. Respectfully submitted, FERGUSON, PRAET & SHERMAN A Professional Corporation by: aaeee Bruce D.Praet, Attorneys for Respondent, Riverside Sheriff's Dept. BDP/cs PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I, Cathy Sherman, employedin the aforesaid County, State of California; I am over the age of 18 years and not a party to the within action. My business address is 1631 East 18th Street, Santa Ana, California 92705-7101. On April 28, 2014, served the SUPPLEMENTAL LETTERBRIEFontheinterested parties in this action by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows: SEE ATTACHED SERVICELIST XXX (By Mail) I placed such envelope with postage thereon fully paid to be placed in the United States mail at Santa Ana, California. XXX (State) I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed on April 28, 2014, at Santa Ana, California. ON Cathy Sherman SERVICE LIST Jan Stiglitz, Arbitrator California Western School ofLaw 225 Cedar Street San Diego, CA 92101 Michael P. Stone Muna Busailah Travis M. Poteat Stone Busailah LLP 200 E. Del Mar Blvd., Suite 350 Pasadena, CA 91105 Richard A. Levine JamesE. Trott Attorney at Law Law Office of James E. Trott P.O. Box 2161 19665 Surfbreaker Lane Santa Monica, CA Huntington Beach, CA Brian P. Ross Helen L. Schwab Silver, Hadden, Silver, Wexler & Levine 1428 Second Street Santa Monica, CA 90401 Green & Shinee, P.C. 16055 Ventura Blvd, Ste 1000 Encino, CA Crystal E. Sullivan Clerk of the Court Office of the County Counsel Riverside Superior Court 2900 West Burrel Avenue 4050 Main Street Visalia, CA Riverside, CA 92501 Clerk of the Court Office of the Attorney General California Court ofAppeal 1300 "I" Street Fourth District, Division Two Sacramento, CA 95814-2919 No. E052729 3389 Twelfth Street Riverside, CA 92501
