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Item 6 Staff Report Request for Amicus Participatin in People v. Bau A Mooc, California Supreme Court, Action No. S090666, at no Cost to the TownMEETING DATE: 11 /20/00 ITEM NO. COUNCIL AGENDA REPORT DATE: November 16, 2000 TO: MAYOR AND TOWN COUNCIL FROM: ORRY P. KORB, TOWN ATTORNEYW" SUBJECT: REQUEST FOR AMICUS PARTICIPATION IN PEOPLE v. BAUA MOOC, , CALIFORNIA SUPREME COURT, ACTION NO. S090666, AT NO COST TO THE TOWN RECOMMENDATION: Authorize the Town Attorney to include the Town of Los Gatos as an amicus curiae in the case of People v. Bau A. Mooc, California Supreme Court, case number S090666, at no cost to the Town. DISCUSSION: Mooc was convicted of battery on a police officer while under an immigration hold. In preparing his defense for trial, Mooc filed a Pitchess motion seeking to review the officer's personnel file. At the hearing, the court received a file that the Santa Ana City Attorney's Office and the police department had been represented to be the desired personnel file. It was in fact a partial file, leaving out records unrelated to the issue of prior complaints against the officer or evidence of prior acts of dishonesty. Having reviewed the file in chambers, the trial court denied the motion. On appeal, Mooc requested that the appellate court review the putative personnel file. The court did so, a highly unusual action. The appellate court found fault with the file and determined that the actions of the Santa Ana City Attorney's Office and the police department in submitting a partial file caused reversible error. The decision denounced the City for actions which have never before been questioned by any court. The amicus brief in this case will support the City of Santa Ana's appeal which asserts that the appellate court decision improperly broadens the interpretation of in camera reviews of files, particularly where the deleted information was neither sought nor relevant to the underlying litigation. Santa Ana asserts that the appellate court ruling improperly invades the privacy rights of police officers. The League of California Cities has determined that this is an important issue to all California public entities, and encourages the Town's support. Attachments: Letter dated September 25, 2000 from City of Santa Ana Distribution: Denah H. Yoshiyama, Assistant City Attorney, City of Santa Ana, 20 Civic Center Plaza, Santa Ana, CA 92701 PREPARED BY: ORRY P..KcORB, TOWN ATTORNEY OPK:LMB/wp N:\ATYIMOOCAMI.TCR Reviewed by: (f1/Manager Finance Revised: 11/16/00 3:11 pm Reformatted: 10//95 File# 301-05 & 704-15.90 Honorable Ronald M. George, Chief Justice Honorable Associate Justices California Supreme Court 350 McAllister Street San Francisco, California 94102 Re: People v. Bau A. Mooc 81 Ca1.App. 4th 1259 (2000) Supreme Court No. S090666 on Petition for Review Court of Appeal No. G023714 Orange Co. Superior Court No. 98CF0508 Letter in Support of Petition for Review Your Honors: On behalf of the City of Santa Ana and pursuant California Rule of Court 14(b) this letter is submitted in support of the Attorney General's Petition for Review in the above matter. We request that this correspondence be filed and considered as part of the record. THE NATURE OF THE CITY OF SANTA ANA'S INTEREST IN THIS MATTER, In the matter of People v. Mooc, the Court of Appeals found that the actions of the Santa Ana City Attorney's Office and the Police Department caused reversible error. As the City of Santa Ana (hereinafter "City") was not a party to the underlying appeal it has never had a chance to brief any issue decided by the Court of Appeals. Because the decision denounces the City for actions which have never before been questioned by any court, the City joins in the request for review so that a proper decision can be made regarding the procedure to be used in connection with the examination of police officer personnel records. Honorable Ronald M. George September 25, 2000 Page 2 AN IN CAMERA REVIEW OF FILES NOT SOUGHT AND NOT RELATED TO THE UNDERLYING LITIGATION IMPROPERLY INVADES THE PRIVACY RIGHTS OF OFFICERS. This court is acutely aware that the California legislature has set forth very specific protections for the personnel files of police officers. Under California Evidence Code section 1043(b) movants seeking access to such files must specifically state the type of records or information being sought and demonstrate good cause for production of such information. By requiring a court to review an entire personnel file, regardless of whether good cause has been shown or whether such records were even requested in the moving papers, the Court of Appeals has disregarded the protections afforded police officers. As brilliantly stated by the Honorable Justice Panelli in his dissent in City of Santa Cruz v. Municipal Court (1989) 49 Ca1.3d 74, 101 "an in camera review of an officer's personnel file may reveal confidential personnel information not relevant to the inquiry before the court" and "disclosure of such personal information would constitute an unnecessary loss of privacy and may have a deleterious effect on the officer's relationship with the court." To review records, especially those such as background investigations, psychiatric or medical records, when no good cause has been shown for such records invades the cloak of confidentiality the legislature has created.' Moreover, it goes against established precedent and statutory authority. See People v. Memro (1985) 38 Ca1.3d 658, 689(holding that psychiatric records enjoy a heightened protection.); see also Evidence Code 917, 1012 and 1014. Disclosure to any person releases information about the officer which the legislature has specifically protected. Such information could include whether the officer is HIV positive, has a communicable disease, or suffers from other medical conditions. Moreover, psychiatric records could include information concerning counseling provided to an officer whose spouse has been unfaithful. This information unless somehow related to the underlying matter should not be disclosed to any person. Moreover, as a matter of public policy, the clear and mandatory privacy protections found in the Califomia Constitution, the Penal Code, and Evidence Code justify such limited disclosure. See California Constitution Art.1, Sec.1; Penal Code 832.7; Evidence Code 917, 1012, 1014, 1043. As there exists no authority under which a complete review of a personnel file is justified the City urges this Honorable Court to find that such procedure is not necessary. I Such disastrous results have already been seen by the City as currently pending in the Court of Appeals, Second District, is a writ of mandate in the matter of People v. Milton Bryan case number B143740 in which the Superior Court found that good cause had not been shown for psychiatric records but under Mooc felt compelled to review such records in camera. Honorable Ronald M.George September 25, 2000 Page 3 AN IN CAMERA REVIEW OF FILES NOT SOUGHT AND NOT RELATED TO THE UNDERLYING LITIGATION PLACES AN UNDUE BURDEN ON TRIAL COURTS, By requiring an examination of an entire personnel file the Court of Appeals has placed upon trial courts an incredible burden which will immobilize law and motion calendars. A review of an entire personnel file is needlessly burdensome for the trial court and will waste hours of judicial resources needed for busy criminal and civil calendars. From a practical standpoint such a procedure is impossible given the voluminous nature of personnel files.2 As the record reflects, the blanket review of the entire personnel file took the Court of Appeals months to complete. In motions where multiple officers are involved the review by trial courts could take significantly longer. During such time the courts will be forced to balance the in camera review with daily court proceedings. Such a procedure will not only slow Pitchess motion determinations but will halt all other proceedings. As Pitchess motions are filed in most criminal actions and civil actions involving police officers it is realistic to imagine a personnel file being needed in multiple courtrooms at the same time. Because a Custodian from the City is intimately familiar with the records such individual could be instructed to conduct a review of the entire personnel file and present all potentially responsive documents for the in camera review. Thus, requiring that an entire file be reviewed is not only improper but unnecessary. AN IN CAMERA REVIEW OF FILES NOT SOUGHT AND NOT RELATED TO THZ UNDERLYING LITIGATION DOES NOT BETTER GUARANTEE THAT POTENTIALLY RESPONSIVE DOCUMENTS WILL BE PRODUCED, Contrary to the Court of Appeals decision, no employee of the City of Santa Ana City Attorney's Office or Police Department has attempted to hide any facts or make any misrepresentation to any court. In fact, the position of both departments is that the attorney and custodian appearing for a Pitchess motion are officers of the court and held to the highest standards of disclosure. Much of the confusion in the Mooc decision is likely based upon the lack of a transcript for the in camera review. As most appellate courts are aware, during the in camera review trial courts routinely question custodians regarding the scope of records which exist and the type of search that the custodian conducted prior to the in camera production. Such a review by the custodian sufficiently protects the moving party interests as custodians are placed under oath and required to swear that no other potentially responsive records exist. Quite frankly, a court's review of an "entire file" does not better guarantee that all potentially responsive documents will be produced. If a custodian is willing to perjure herself/himself that no portion of the file contains potentially responsive records then such a custodian would simply not bring potentially damaging information when required to produce ` This Honorable Court is aware of the scope of a personnel file as Garcia's entire original file was transferred from the Court of Appeals on or about August 18, 2000. Honorable Ronald M. George September 25, 2000 Page 4 the entire file. Though the City believes such behavior is repugnant, the Court of Appeals simply failed to recognize the reality of its holding. Accordingly, review is appropriate. THIS COURT HAS PREVIOUSLY FOUND NO ERROR WHEN LESS THAN AN ENTIRE_ PERSONNEL FILE IS REVIEWED, In People v. Jackson (1996) 13 Cal. 4`h 1164, 1219-1221, this court found no error with an in camera review which relied upon testimony of a Custodian of Records regarding the contents rather than an actual review of the file. Moreover, in People v. Breaux (1991) 1 Cal. 4th 281, this court contemplated less than the entire file being reviewed by the trial court as only a five year period of records was produced. Accordingly, the Court of Appeals decision goes against that which this Honorable Court has previously found innocuous. It is important to note that the City does not propose that its own Custodians determine relevant complaints or documents. It has been the position of the City of Santa Ana that all potentially responsive documents are brought to in camera reviews. When a finding of good cause is made for any type of record all such records are brought. For example, if a trial court finds good cause for review of complaints of excessive force then all complaints regardless of their nature are produced for the in camera review. This includes complaints of use of profanity, complaints of dirty uniforms, and complaints of wrongful arrests. Moreover, if medical records were ordered reviewed than all medical records would be brought regardless of the nature. Though this procedure does release information which is protected and not related to the action the City does recognize the need for the trial court to independently review documents to determine discoverable information. As the Court of Appeals has established significant and unsupported published precedent the City respectfully requests that this court grant review or in the alternative depublish the opinion in this matter. Respectfully, Submitted JOSEPH W. FLETCHER CITY ATTORNEY Denah H. Yoshiyama, Assistant City Attorney PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in Orange County, California. I am over eighteen years of age and not a party to the within action; my residence/business address is 20 Civic Center Plaza, Santa Ana, California 92701. On September 25, 2000, I served the foregoing document described as LETTER IN SUPPORT OF PETITION FOR REVIEW on the interested parties in this action. [X] By placing [ ] the original [ X ] a true copy thereof enclosed in sealed envelopes as follows: SEE ATTACHED SERVICE LIST [X] BY MAIL [ ] FEDERAL EXPRESS [ ] BY FACSIMILE ( ) [X] As follows: I am "readily familiar" with my employer's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. Postal Service on that same day with postage thereon fully prepaid at Santa Ana, California in ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. Executed on September 25, 2000, at Santa Ana, California. [X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. JEANETTE PALMA SERVICE LIST People v. Bau A. Mooc 81 Ca1.App. 4th 1259 (2000); Supreme Court No. S090666 on Petition for Review Court of Appeal No. G023714; Orange Co. Superior Court No. 98CF0508 Jefferey Wilens, Esq. Lakeshore Law Center 26440 La Alameda, Suite 300 Mission Viejo, CA 92691 Orange County Superior Court 700 Civic Center Drive West Santa Ana, CA 92701 Attn: Honorable Frank F. Fasel Orange County District Attorney Gregory J. Robischon Assistant District Attorney 401 Civic Center Drive West Santa Ana, CA 92701 Office of the Attorney General 110 West "A" Street, Suite 1100 San Diego, CA 92186-5266 Attn: Marilyn L. George Appellate Defenders 233 "A" Street, Suite 1200 San Diego, CA 92101 Martin J. Mayer, Esq. Meyer & Cobler 249 East Ocean Blvd., Suite 900 Long Beach, CA 90802 Clerk of the Court District Court of Appeal Fourth Appellate District Division Three 925 North Spurgeon Street Santa Ana, CA 92701 Town Council Minutes November 20, 2000 Redevelopment Agency Los Gatos, California Informational report regarding currently scheduled public hearings was received and tiled. PLANNING COMMISSION/PLANNING DEPARTMENT MONTHLY STATUS REPORT (02.38) Informational report regarding activity of Planning Commission and Department was received and filed. RATIFICATION OF PAYROLL/OCTOBER 2000 (03.V) Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council ratify the check registers for the payroll of October 15, 2000 through October 28, 2000 paid on November 3, 2000 in the amount of $422,066.18. Carried unanimously. ACCOUNTS PAYABLE/RATIFICATION/NOVEMBER 2000 (04.V) Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council ratify the accompanying check registers for accounts payable invoices paid on November 3, 2000, and November 10, 2000 in the amount of $593,370.27. Carried unanimously. AMICUS BRIEF/PEOPLE VS. BAU A MOOC (06.28) Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council authorize the Town Attorney to include the Town of Los Gatos as an amicus curiae in the case of People vs. Bau A Mooc, California Supreme Court, Action S090666, at no cost to the Town. Carried unanimously. AMICUS BRIEF/YOUNG VS. CITY OF SIMI VALLEY (07.28) • Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council authorize the Town Attorney to include the Town of Los Gatos as an amicus curiae in the case of Young vs. City of Simi Valley, California Supreme Court, at no cost to the Town. Carried unanimously. BRIDGE OVER HIGHWAY 85/GRAFFITI REMOVAL/UNION PACIFIC RAILROAD (08.36) Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council receive and file informational report on painting over the graffiti on the Union Pacific Railroad bridge over Highway 85. Carried unanimously. DONATED VEHICLE ACCEPTANCE/DARE PROGRAM/PONTIAC TRANS AM (09.36) Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council accept donation from the Los Gatos Police Foundation for a 1993 Pontiac Trans Am for use as a School Resource Officer (SRO)/Drug Awareness Resistance Education (DARE) vehicle. Carried unanimously. TREE PRUNING AND REMOVAL/PRJ-01-04/RESOLUTION 2000-135 (11.24) Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council adopt Resolution 2000-135 entitled, RESOLUTION OF THE TOWN OF LOS GATOS APPROVING SPECIFICATIONS FOR PROJECT 104 - TREE PRUNING AND REMOVAL AND AUTHORIZING THE TOWN CLERK TO ADVERTISE FOR BIDS. Carried unanimously. BELMONT 215/RESIDENTIAL/S-00-53/RESOLUTION 2000-136 (12.15) Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council adopt Resolution 2000-1 36 entitled, RESOLUTION OF THE TOWN OF LOS GATOS GRANTING APPEAL OF A PLANNING COMMISSION DECISION TO APPROVE UNLAWFUL DEMOLITION AND THE RECONSTRUCTION OF A SINGLE FAMILY RESIDENCE WITH A SECOND STORY WHICH PROJECT INTO THE REQUIRED SETBACKS AND THE ADDITION TO TC:DII:MM112000 3