Metropolitan News-Enterprise


Friday, August 10, 2007


Page 1


Pitchess Declaration May Be Filed Under Seal, S.C. Rules


By a MetNews Staff Writer


A declaration in support of a motion to compel disclosure of police personnel records may be filed under seal, with the trial court’s approval, in order to protect privileged information, the California Supreme Court ruled yesterday.

The justices unanimously affirmed a Fourth District Court of Appeal ruling in favor of Jose Antonio Garcia, who was charged after an altercation with Santa Ana officers, which occurred while he was being booked into the city jail. Garcia moved for disclosure of the officers’ records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 and Evidence Code Sec. 1043.

In an opinion by Justice Carol Corrigan, the high court held that the movant may file a declaration under seal; that if the trial court agrees that there is privileged material in the declaration, the movant may serve a redacted copy on the employing law enforcement agency; and that the movant cannot be required to disclose the privileged material to the agency, even under the protection of an order barring it from disclosing the information.

In Garcia’s case, Orange Superior Court Judge Carla Singer sustained the defendant’s claim of privilege as to attorney-client communications and work product and ordered certain redactions, but also ordered other parts of the declaration provided to the city under a protective order.

Garcia sought a writ of mandate, arguing that parts of the material ordered disclosed subject to the protective order were also privileged, while the city asserted that it should be permitted to review the entire declaration under a protective order and that it could not properly respond otherwise.

After the Supreme Court granted review and held oral argument, Garcia withdrew his motion and pled guilty. The high court, however, elected to resolve the case on its merits in view of the likelihood of the issues recurring, rather than dismiss it as moot.

Corrigan, siding with Garcia and the Court of Appeal, explained that in most cases, the showing required of the movant is so minimal that disclosure of privileged information will be unnecessary. But where there is a possibility of such information being disclosed, she wrote, the defendant should “not be forced to choose between pursuing discovery efforts by revealing privileged information or forgoing discovery to maintain a privilege,” the justice said.

The justice went on to reject the city’s argument that the employing agency should be allowed to view a defendant’s entire Pitchess declaration, subject to a protective order. This would unnecessarily compromise the defendant’s rights, Corrigan said.

“Contrary to...the city’s claim here,” she wrote, “the city attorney is not an entirely neutral third party.” While there was considerable argument as to the nature of the relationship between city attorneys and police departments, she said, there is no question that in these cases, the city attorney will be counsel for the officer and will be responsible for protecting the officer’s privacy interest in limiting disclosure of the officer’s records.

The justice acknowledged that Div. Three of this district’s Court of Appeal, in City of Los Angeles v. Superior Court (Davenport) (2002), 96 Cal.App.4th 255, held that it was appropriate to allow the city attorney to view a defendant’s entire Pitchess  affidavit under a protective order in such circumstances. That case was wrongly decided and is now overruled, Corrigan said.

The case was argued in the high court by Deputy Public Defender Donald E. Landis Jr. for the defendant, Assistant City Attorney Paula J. Coleman for Santa Ana, and Los Angeles Deputy City Attorney Kim Rodgers Westhoff for the League of California Cities and California State Association of Counties as amici supporting Santa Ana.

 The case is Garcia v. Superior Court (City of Santa Ana), 07 S.O.S. 5005.


Copyright 2007, Metropolitan News Company