Wednesday, August 3, 2011
C.A. Says Police Department Must Answer Grand Jury Subpoena
By SHERRI M. OKAMOTO, Staff Writer
A grand jury investigating possible police negligence after a civilian was struck by a bullet which strayed from a departmental firing range was not required to submit an affidavit of good cause in support of its subpoena of documents, the Fifth District Court of Appeal has ruled.
The appellate panel, in a decision Monday by Justice Jennifer R.S. Detjen, said that a grand jury’s demand for records from a public agency to which it has been given express statutory access is not subject to the requirements of Code of Civil Procedure Sec. 1985.
This statute requires that a subpoena duces tecum in a civil proceeding be served with a “copy of an affidavit … showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.”
The question of the applicability of this statute to a grand jury subpoena arose from an incident in January 2009 where a bullet, apparently fired by a Woodlake Police Department officer at a shooting range owned by the Exeter Police Department, left the range and struck a civilian approximately one mile away.
The Tulare County Grand Jury thereafter sought to investigate certain aspects of the incident. On April 8, 2010, it issued subpoenas to several officers of the Woodlake Police Department and to its chief, John Zapalac.
It also issued a subpoena duces tecum to the Woodlake Police Department ordering the department to present documents regarding the rules enforced at the firing range, the course layout used during the training exercise being conducted at the range on the date of the incident, the range master’s certification, internal investigation reports, and the training schedule for all police officers who used the range.
The city, department and Zapalac brought an action that was ultimately treated as a motion to quash the subpoenas. Tulare Superior Court Judge Lloyd L. Hicks found the subpoenas directed to the individuals were valid and enforceable, but that the subpoena duces tecum was invalid because it failed to comply with Sec. 1985.
Detjen, joined by Justices Dennis A. Cornell and Donald R. Franson Jr., reasoned that Hicks’ order terminated the entire proceeding on the merits and was appealable as a final judgment.
She explained, however, that Sec. 1985 “defines subpoenas for purposes of civil proceedings” and an investigation by a grand jury “is not a civil proceeding for purposes of the statutory framework for discovery in civil proceedings,” since it “is not adjudicatory, and it does not provide relief to parties who appear before it, which are the fundamental elements of a civil proceeding.”
Detjen emphasized that the “[i]nvestigation into the conduct and actions of local agencies is one of the key statutory powers conferred on civil grand juries,” and it is empowered to examine the books and records of any incorporated city or joint powers agency located in the county at any time.
The justice also noted that the “denomination of a command for production of documents as a ‘subpoena duces tecum’ is merely a general and accepted title for such a command.” Detjen said a “grand jury may choose to entitle its command as such, but it does not, by doing so, adopt the limitations of section 1985 that are applicable to civil proceedings.”
The case is City of Woodlake v. Tulare County Grand Jury, 11 S.O.S. 4229.
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