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  • Fresno Deputy Sheriff's Association vs. County of Fresno02 Unlimited - Writ of Mandate document preview
  • Fresno Deputy Sheriff's Association vs. County of Fresno02 Unlimited - Writ of Mandate document preview
  • Fresno Deputy Sheriff's Association vs. County of Fresno02 Unlimited - Writ of Mandate document preview
  • Fresno Deputy Sheriff's Association vs. County of Fresno02 Unlimited - Writ of Mandate document preview
  • Fresno Deputy Sheriff's Association vs. County of Fresno02 Unlimited - Writ of Mandate document preview
  • Fresno Deputy Sheriff's Association vs. County of Fresno02 Unlimited - Writ of Mandate document preview
  • Fresno Deputy Sheriff's Association vs. County of Fresno02 Unlimited - Writ of Mandate document preview
  • Fresno Deputy Sheriff's Association vs. County of Fresno02 Unlimited - Writ of Mandate document preview
						
                                

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Gary M. Messing, Bar No. 75363 gary@m i ajlabor.com Monique A. ‘onso, Bar No. 127078 E-FILED 2/26/2019 2:09 PM monique@ majlabor.com MESSING ADAM & JASMINE LLP FRESNO COUNTY SUPERIOR COURT 980 9" Street, Suite 38 By: A. Ramos, Deputy Sacramento, California 95814 Telephone: 916.446.5297 Facsimile: 916.448.5047 Attomeys for Petitioner FRESNO DEPUTY SHERIFF’S ASSOCIATION SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 UNLIMITED JURISDICTION 12 FRESNO DEPUTY SHERIFF’S Case No. 19CECG00659 ASSOCIATION, 13 MEMORANDUM OF POINTS AND Petitioner, AUTHORITIES IN SUPPORT OF EX 14 PARTE APPLICATION OF PETITIONER Vv FRESNO DEPUTY SHERIFF’S 15 ASSOCIATION FOR ALTERNATIVE COUNTY OF FRESNO, and DOES 1-10, WRIT OF MANDATE AND STAY 16 inclusive, ORDER 17 Respondent. [CCP §§1085, 1087; Fresno County Superior Court Local Rule 2.7] 18 Date: February 28, 2019 19 Time: 3:30 p.m. Dept.: 501 20 21 22 23 24 25 26 27 28 00066873-1 MESSING ADAM & JASMINE LLP FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY ATTORNEYS AT LAW TABLE OF CONTENTS Page INTRODUCTION II BACKGROUND IL LEGAL ARGUMENT A Issuance of an Alternative Writ of Mandate is Necessary tto > Enjoin ththe County From Imminently Producing Records... A Stay Order is Necessary to Enjoin Any Production of Records Created Before January 1, 2019, UntilUl Adjudication of the DSA’s Petition for Peremptory Writ... 1 The DSA is likely to succeed on the merits of this action (a) A retroactive implementation of SB 421 would 10 impermissibly eliminate existing statutory privacy rights of Peace Officers 11 (b) SB 1421's amendments operate prospectively only and 12 cannot be applied as to information in Peace Officer personnel records in existence prior to January 1, 2019 13 2 Absent a stay, the DSA’s members will suffer irreparable harm 11 14 IV CONCLUSION 12 16 17 18 19 20 21 22 23 24 25 26 27 28 MESSING ADAM & 00066873-1 JASMINE LLP 1 ATTORNEYS AT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY TABLE OF AUTHORITIES Page CASES Aetna Cas. & Sur. Co. v. Industrial Acc. Commissionm (1947) 30 Cal.2d 388... 7, 8, 10 Balenv. Peralta Junior Col. Dist. (1974) 11 Cal.3d 821 Bullard v. California State Automobile Assn.1 (2005) 129 Cal.App.4th 211... 10 City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411 10 City of San Diego v. Superior Court (1981) 11 136 Cal.A pp.3d 236 12 City of Santa Cruz v. Superior Court (1989) 49 Cal.3d 74 13 Cohen v. Bd. of Supervisors (1985) 14 40 Cal.3d 277 15 Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278 16 Continental Baking Co. v. Katz (1986) 17 68 Cal.2d 512... 18 Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272... 19 Davis v. City of Sacramento (1994) 20 24 Cal.App.4th 393 21 Delaney v. Superior Court (1990) 50 Cal.3d 785 22 Evangelatos v. Superior Court (1988) 23 44 Cal.3d 1188 7,9 24 Hackett v. Superior Court (1993) 13 Cal.App.4th 96 25 Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 26 6 Cal.App.4th 1233 27 Indus. Indem. Co. v. Workers' Comp. Appeals Bd. (1978) 85 Cal. App.3d 1028 28 00066873-1 MESSING ADAM & il JASMINE LLP FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE. REQUEST FOR STAY ATTORNEYS AT LAW TABLE OF AUTHORITIES (Continued) Page J.A. Jones Construction Co. v. Superior Court © rt (1994) 27 Cal. App.4th 1568.. 10 Long Beach Ci Employees Assn. v. City of Long Beach (1986) 41 Cal d 937 Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.A pp.4th 1250 Myers v. Philip Morris Companies, IInc.©. (2002) 28 Cal. 4th 828... 8,9, 10 Novar Corp. v. Bureau of Collection & Investigative Services (1984) 160 Cal.App.3d 1 11 10 People ex rel. Younger v. County of El Dorado (1971) 11 5 Cal.3d 480 12 People v. Mooc (2001) 26 Cal.4th 1216 13 Pitchess v. Superior Court (1974) 14 11 Cal.3d 531 15 Quintano v. Mercu: Casualty Co. Cc - ((895) 11 Cal.4th 1049.. 10 16 Rosales v. City of Los Angeles (2000) 17 82 Cal. App.4th 419.. 11 18 Save Oxnard Shores v. California Coastal Commission (1986) 179 Cal App 3d 140 19 Transdyn/Cresci v. City and Co. of San Francisco (1999) 20 72 Cal.A pp.4th 746 21 STATE STATUTES 22 Code of Civil Procedure 23 section 1085 1,3,5 24 Evidence Code section 1043 25 section 1046 26 Penal Code section 832.7 passim 27 section 832.8 6,7 28 MESSING ADAM & JASMINE LLP 00066873-1 i ATTORNEYS AT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE, REQUEST FOR STAY TABLE OF AUTHORITIES (Continued) Page OTHER AUTHORITIES 4 || Weil, etal., Cal. Practice Guide: Admin. Law (TRG 2018) 19:70 5 CONSTITUTIONAL PROVISIONS California Constitution, Article I section 3 6, 7,8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MESSING ADAM & JASMINE LLP 00066873-1 iv ATTORNEYS AT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY Petitioner Fresno Deputy Sheriff's Association (the “DSA”) seeks an Alternative Writ of Mandate directing Respondent County of Fresno (the "County") and its agents, employees and representatives to refrain from enforcing or taking any steps to enforce California Senate Bill 1421 (“SB 1421”), which amends California Penal Code §§ 832.7 and 832.8, so as to require the disclosure of certain information contained in peace officer personnel records created prior to January 1, 2019. The DSA also requests that the Court issue an immediate order staying or enjoining any such enforcement of SB 1421 by the County during the pendency of these proceedings. I 10 INTRODUCTION 11 On September 30, 2018, Governor Brown approved SB 1421, amending Penal Code 12 §§ 832.7 and 832.8. In pertinent part, SB 1421 amended Penal Code § 832.7, effective January 1, 13 2019, by eliminating the long-established statutory confidentiality accorded certain private 14 information contained in peace officer and custodial officer (collectively, “Peace Officer’) 15 personnel records, and mandating that this private information henceforward be made available for 16 public inspection pursuant to the California Public Records Act ("PRA"). Gov’t Code §6250, et 17 seq. 18 The County has informed the DSA that that it intends imminently to apply SB 1421 to 19 disclose, pursuant to requests made to it under the PRA, certain personnel records information 20 created prior to January 1, 2019. Up until December 31, 2018, however, statutory privacy protection 21 has covered the personnel file information called out in SB 1421 for over thirty years, making any 22 such production unlawful. Because SB 1421 makes no express provision for retroactively stripping 23 away that protection, and the bill’s legislative history fails to support such a construction, the law 24 prohibits the County from disclosing the information it now threatens to produce. Without an 25 Alternative Writ directing the County to refrain from production at least until such time as the 26 scope of the new statute is clarified, the DSA’s members’ statutory privacy rights are imminently 27 28 ' All statutory references are to the California Code. MESSING ADAM & JASMINE LLP 00066873-1 1 ATTORNEYSAT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY jeopardized and they will suffer irreparable harm far outweighing any detriment the County may allege, and that cannot to rectified once the documents are in the public realm. The DSA further requests that this Court issue a Stay Order to enjoin any such production under SB 1421 pending a hearing on the DSA’s Petition for Peremptory Writ of Mandate, or until this Court otherwise directs. The DSA is likely to succeed on the merits of this action because SB 1421's amendments on their face do not operate retroactively to divest its members of their prior- acquired privacy right in the confidentiality of personnel file information in place prior to January 1, 2019. Finally, the DSA has a beneficial interest in Respondent’s compliance with its ministerial 10 duty to guard the privacy rights of the DSA’s members by refraining from applying SB 1421 so as 11 to result in the release of confidential records created prior to January 1, 2019. All prerequisites 12 being present, an Alternative Writ of Mandate should issue and a Stay Order put in place. 13 II. 14 BACKGROUND 15 Since January 1, 2019, numerous Califomia Superior Courts have granted alternative writs 16 of mandate or temporary restraining orders staying the production of pre-January 1, 2019 records 17 requested under the PRA pursuant to SB 1421, including Merced County, Orange County, Los 18 Angeles County, San Bernardino County, and Riverside County. Declaration of Monique Alonso 19 In Support of A pplication for Alternative Writ of Mandate, etc. (“Alonso Dec.”), filed 20 concurrently herewith, {| 3. In addition, the Ventura County Superior Court has issued a 21 preliminary injunction on any such production after having previously granted a TRO to the 22 Deputy Sheriffs’ Association in that case. Id. 23 On February 1, 2019, the California Attorney General announced that it would not be 24 releasing records created before January 1, 2019 until further guidance from the courts, stating: 25 “Historically, under state statute, peace officers have had a significant privacy right in their 26 personnel records. ...When it comes to disclosing a person’s private information, you don’t get a 27 second chance to get it right.” 28 https://www.sachbee.com/news/state/california/article226293420.html MESSING ADAM & JASMINE LLP 00066873-1 2 ATTORNEYSAT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY To date only two courts have denied union requests for preliminary injunction (after having granted temporary restraining orders) - Contra Costa County Superior Court (Walnut Creek Police Officers’ Association v. City of Walnut Creek (and related cases), Case No. N19-0109) and Los Angeles County (Los Angeles Police Protective League v. City of Los Angeles, Case No. 18STCP03495). Both courts, however, stayed implementation of their orders to allow an appeal and request for stay before the applicable district court of appeal. The unions have appealed the Contra Costa decision; the Los Angeles County decision issued on February 19. Alonso Dec., 4. On or after January 1, 2019, the County received multiple lengthy PRA requests pursuant to SB 1421 from individuals and various media organizations for voluminous materials created 10 before January 1, 2019. Declaration of Daniel Cederborg In Support of A pplication for Altemative 11 Writ of Mandate, etc. (““Cederborg Dec.”), filed concurrently herewith, 42. Absent a stay, the 12 County has informed the DSA that it intends imminently to release documents in response to the 13 PRA requests. Id. This proceeding followed. 14 Ill. 15 LEGAL ARGUMENT 16 A Issuance of an Alternative Writ of Mandate is Necessary to Enjoin the County From Imminently Producing Records 17 Mandamus is proper to compel a public agency's performance of acts specifically 18 proscribed by law, here, not to produce records that SB 1421 does not require it to disclose. Code 19 Civ. Proc. § 1085. Issuance of a writ of mandate depends on two factors: (1) a clear, present and 20 ministerial duty on the part of the respondent; and (2) a clear, present and beneficial right in the 21 petitioner to the performance of that duty. People ex rel. Younger v. County of El Dorado (1971) 5 22 Cal.3d 480, 491. These prerequisites are present here and an alternative writ should issue. 23 As athreshold matter, the DSA has a clear, present and beneficial interest on behalf of its 24 members to protect their right to privacy in legally-established confidential personnel record 25 information. See Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 26 941 n. 3 (employee organization has standing to assert the privacy rights of its members). 27 28 MESSING ADAM & JASMINE LLP 00066873-1 3 ATTORNEYSAT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY As for Respondent’s obligations, a ministerial duty is one required to be performed "in a prescribed manner in obedience to the mandate of legal authority and without regard to [] judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists." Transdyn/Cresci v. City and Co. of San Francisco (1999) 72 Cal.App.4th 746, 752. Here, the County has a ministerial duty to refrain from unlawfully releasing confidential information. See Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1266- 1267 (mandamus appropriate to "prevent a public agency from acting in an unlawful manner by releasing information the disclosure of which is prohibited by law"). SB 1421's amendments became effective January 1, 2019, and the County has received multiple PRA requests since that 10 date. Cederborg Dec., 2. Once it receives such a request, by law the County must respond 11 promptly. Gov. Code § 6253(c). The County has advised that it intends imminently to produce 12 pre-January 1, 2019, documents and information contained in Peace Officer personnel records as 13 to specified conduct enumerated in Penal Code § 832.7(b)(1)(A)-(C). Id. 14 As discussed below, that intention is contrary to the directive of SB 1421 and must 15 therefore be enjoined. Courts will issue an alternative writ when the petition sufficiently alleges a 16 cause of action, that, if proven, could lead to the issuance of a final or peremptory writ. Save 17 Oxnard Shores v. California Coastal Commission (1986) 179 Cal App 3d 140, 149. Here, in the 18 absence of any express legislative direction, the County has a clear and present ministerial duty to 19 refrain from applying SB 1421 so as to disclose records still subject to statutory privacy protection. 20 Due to the County’s impending production, a regularly noticed hearing on a Peremptory 21 Writ of Mandate will not provide timely relief to the DSA’s members whose statutory and 22 constitutional privacy rights are imminently jeopardized. The issuance of an Alternative Writ of 23 Mandate and Stay Order is therefore necessary to immediately direct the County to refrain from 24 unlawfully releasing confidential Peace Officer information, or to show cause why it will not 25 refrain. Code Civ. Proc. § 1087. 26 27 28 MESSING ADAM & JASMINE LLP 00066873-1 4 ATTORNEYSAT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY B. A Stay Order is Necessary to Enjoin Any Production of Records Created Before January 1, 2019, Until Adjudication of the DSA’s Petition for Peremptory Writ “{The standards for a stay under CCP §1085 are functionally the same as the standards governing issuance of a TRO and preliminary injunction.” Weil, et al., Cal. Practice Guide: Admin. Law (TRG 2018) 19:70. Preliminary injunctive relief is appropriate to maintain the status quo pending a final determination of the merits of an action, by restraining the commission of a threatened act in violation of the petitioner's rights or to prevent great or irreparable injury. Continental Baking Co. v. Katz (1986) 68 Cal.2d 512, 528. Issuance of a preliminary injunction depends on two interrelated factors: (1) the likelihood that the plaintiff will succeed on the merits 10 of his claim at trial, and (2) the harm that the plaintiff is likely to suffer if preliminary injunctive 11 relief does not issue, balanced against the harm that the defendant is likely to suffer if it does issue. 12 Cohen v. Bd. of Supervisors (1985) 40 Cal.3d 277, 286. 13 1 The DSA is likely to succeed on the merits of this action 14 (a) A retroactive implementation of SB 421 would impermissibly eliminate existing statutory privacy rights of Peace Officers 15 16 Effective January 1, 2019, SB 1421's amendments to Penal Code §§ 832.7 and 832.8 allow 17 disclosure of four particular categories of peace officer personnel file "records."* These categories 18 comprise broad information in records relating to incidents involving (1) the discharge of a firearm 19 at a person; (2) use of force resulting in death or great bodily injury; (3) sustained findings by a law 20 enforcement agency or "oversight agency" of "sexual assault involving a member of the public", and; 21 (4) sustained findings by a law enforcement agency or “oversight agency" of specified instances of 22 dishonesty. Alonso Dec., Ex. A, § 2; Pen. Code § 832.7(b)(1)-(2). Until SB 1421, however, long- 23 standing law has designated Peace Officer personnel records, and the information contained in 24 those records, as private and confidential and exempt from disclosure unless in the course of 25 26 27 2 SB 1421 defines "records" expansively to include essentially the entirety of an investigation file, including all documents from a subsequent administrative appeal process and anything presented by an employer to a district 28 attomey for criminal investigation. Alonso Dec., Ex. A, § 2; Pen. Code § 832.7(b)(1)(C)(2). MESSING ADAM & JASMINE LLP 00066873-1 5 ATTORNEYSAT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY litigation and then only after compliance with the rigorous statutory Pitchess process.’ Pen. Code § 832.7(a). Confidential Peace Officer "personnel records" include “any file maintained under that individual's name by his or her employing agency and containing records relating to" among other things "[e]mployee advancement, appraisal, or discipline," d "[c]omplaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties." Pen. Code § 832.8(d), (e). At least until SB 1421’s effective date of January 1, 2019, Peace Officers incontestably possessed this privacy right in their personnel file information, which public agencies could not disclose in response to a PRA request. City of Hemet v. Superior Court (1995) 10 37 Cal.App.4th 1411, 1430 ("[T]he protection of Penal Code §832.7 is illusory unless that statute 11 is incorporated into CPRA..."). 12 This right is enshrined in the California Constitution, which expressly recognizes the right 13 of privacy covering “information concerning the official performance or professional 14 qualifications of a peace officer.” Cal. Const., art. I, §3 (b) (3). Article I, §3 provides generally 15 that legal authority furthering the people's right of access to public records be "broadly construed," 16 while authority that "limits" the right of access be "narrowly construed." Cal. Const., art. I, § 3 17 (b)(1), (2). This mandate, however, specifically excludes provisions that protect peace officers’ 18 privacy interest in the confidentiality of their personnel file information. Cal. Const., art. I, § 3 19 (b)(3); Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 20 278, 288 ("The Constitution [] recognizes the right to privacy and specifically acknowledges the 21 statutory procedures that protect the privacy of peace officers"). The California Supreme Court has 22 recognized that the statutory privilege affords Peace Officers "a strong privacy interest in [their] 23 personnel records." People v. Mooc (2001) 26 Cal.4th 1216, 1227; id. at 1220 (peace officer has a 24 "legitimate expectation of privacy in his or her personnel records"); Copley Press, Inc. v. Superior 25 Court (2006) 39 Cal.4th 1272, 1300 ("One of Penal Code section 832.7's purposes is 'to protect the 26 27 3 The "Pitchess process" refers to the statutory in-camera disclosure procedure for relevant personnel 28 records during civil and criminal proceedings enacted in response to Pitchess v. Superior Court (1974) 11 Cal.3d 531. See Evid. Code§§ 1043, 1046, 1047. MESSING ADAM & JASMINE LLP 00066873-1 6 ATTORNEYSAT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY right of privacy of peace officers"); City of Santa Cruz v. Superior Court (1989) 49 Cal.3d 74, 83- 84. Maintaining the confidentiality of such information encourages public agencies to retain these records and encourages the cooperation and candor of peace officers during internal investigations. Davis v. City of Sacramento (1994) 24 Cal. App.4th 393, 401, n. 1; City of Hemet, supra, 37 Cal.App.4th at 1430. Other statutes complement this scheme. Under Evidence Code §§ 1043 and 1046, such information is confidential as a matter of law and not otherwise subject to disclosure, except by discovery in litigation, and only then based on a particularized showing. Even Penal Code § 832.8 recognizes that the enumerated categories in the definition of “personnel records” are protected by 10 the right of privacy (including a catch-all for “[a]ny other information the disclosure of which 11 would constitute an unwarranted invasion of personal privacy”). There can be no legitimate 12 dispute that the information in their personnel files, at least up until January 1, 2019, is protected 13 by the Peace Officers’ right of privacy. The Constitution provides that any construction of statutes 14 pertaining to the right of access to information of public agencies does not supersede or modify 15 the right of privacy nor affect the construction of statutes that protect the constitutional right of 16 privacy. Cal. Const., art. I, §3(b) (3). The County’s stated intent unilaterally to read in 17 retroactivity to eliminate Peace Officers’ pre-existing right of privacy in this particular 18 information where no such statutory direction exists directly contradicts this Constitutional 19 mandate. 20 ) SB 1421's amendments operate prospectively only and cannot be applied as to information in Peace Officer personnel records in 21 existence prior to January 1, 2019 22 It is well-settled that a statutory enactment cannot operate retroactively unless it (1) 23 contains an express retroactivity provision or (2) "very clear" from other sources that the 24 Legislature "must have intended a retroactive application." Evangelatos v. Superior Court (1988) 25 44 Cal.3d 1188, 1209. SB 1421 does not contain an express retroactivity provision, and the 26 relevant extrinsic evidence provides no indication that the Legislature intended the new law to 27 apply retroactively. 28 MESSING ADAM & JASMINE LLP 00066873-1 7 ATTORNEYSAT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY "A retrospective law is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute." Aetna Cas. & Sur. Co. v. Industrial Acc. Commission (1947) 30 Cal.2d 388, 391. "[E]very statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective." Myers v. Philip Morris Companies, Inc. (2002) 28 Cal. 4th 828, 839. Statutes are not to be given a retrospective operation unless it is clear that such was the legislative intent. Aetna Cas., 30 Cal. 2d at 393. Reading SB 1421's amendments to eliminate the confidentiality of information contained in files existing prior to its effective date would constitute a retroactive application of its 10 provisions. 11 Prior to the effective operation of the SB 1421 amendments, Peace Officers were afforded 12 the right to confidentiality in all of their personnel file information — a privacy right established 13 by statute, affirmed by this Court, and acknowledged by the Constitution. Pen. Code § 832.7(a); 14 Mooc, supra, 26 Cal.4th at 1227; Cal. Const., art. I, § 3(b) (3); Section B.1.a, supra. This is an 15 informational privilege held by the individual peace officer — not merely a privilege allowing a 16 public agency to withhold the production of physical documents; the privacy right extends beyond 17 the actual "files" or "records" maintained by public agencies to encompass the information 18 contained in or obtained from those documents. Pen. Code § 832.7(a) ("Peace officer.. personnel 19 records ... or information obtained from these records, are confidential...;” emphasis added); Cal. 20 Const., art. I, § 3(b)(3) (constitutional rightto privacy includes the "statutory procedures 21 governing discovery or disclosure of information conceming the official performance or 22 professional qualifications of a peace officer;" emphasis added); Hackett v. Superior C ourt (1993) 23 13 Cal.App.4th 96, 98-99 ("[T]here is nothing in the statutory scheme or its history suggesting a 24 legislative intent to exclude from the privilege[] information which happens to be obtainable 25 elsewhere;" emphasis in original); City of San Diego v. Superior Court (1981) 136 Cal.App.3d 26 236, 239 ("There would be no purpose to protecting such information in the personnel records if it 27 could be obtained by the simple expedient of asking the officers for their disciplinary history 28 orally"). MESSING ADAM & JASMINE LLP 00066873-1 8 ATTORNEYSAT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY As these authorities teach, disclosing records created prior to January 1, 2019, would constitute a retroactive application of SB 1421's amendments because it would violate the right to privacy of that information already acquired under existing law. Aetna Cas., 30 Cal.2d at 391 ("A retrospective law is one which affects rights... [that] exist prior to the adoption of the statute"). SB 1421's amendments cannot be applied retroactively, moreover, because the Legislature did not intend such an operation. "A pplication of a statute to destroy interests which matured prior to its enactment is generally disfavored." Balen v. Peralta Junior Col. Dist. (1974) 11 Cal.3d 821, 830. Statutes are presumed to "operate prospectively only," because "the first rule of [statutory] construction [states] that legislation must be considered as addressed to the future, not to the 10 past..." Myers, supra, 28 Cal.4th at 840. "[A] retrospective operation will not be given to a statute 11 which interferes with antecedent rights ... unless such be 'the unequivocal and inflexible import of 12 the terms, and the manifest intention of the legislature.’’ Id. (emphasis added); see also 13 Evangelatos, supra, 44 Cal.3d at 1209 ("[I]n the absence of an express retroactivity provision, a 14 statute will not be applied retroactively unless it is very clear from extrinsic sources that the 15 Legislature [] must have intended a retroactive application"). "Something more than a desirable 16 social objective served by the legislation is [] required if we are to infer a legislative intent of 17 retroactivity." Indus. Indem. Co. v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 1028, 18 1032. 19 "First, a court should examine the actual language of the statute" to determine if a retroactive 20 intent exists because "it is the language of the statute itself that has successfully braved the 21 legislative gauntlet." Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238. 22 SB 1421's terms contain no express provision or language eliminating the confidentiality long 23 afforded this information with respect to materials created before January 1, 2019, nor any clear 24 indication in the history that the Legislature intended the statute to operate so as to be applied and 25 enforced with respect to Peace Officer personnel records and information created prior to 26 January 1, 2019.4 See Alonso Dec., Ex. A, §§ 1, 2. The language of SB 1421 is not ambiguous on 27 28 “To the contrary, the legislative history repeatedly affirms that "existing law" deems all Peace Officer personnel file material to be confidential. MESSING ADAM & JASMINE LLP 00066873-1 9 ATTORNEYSAT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY this point. Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 ("If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature..."). Had the Legislature intended SB 1421's amendments to rescind already acquired privacy rights, presumably it would have acknowledged that dramatic change and expressly stated as much. Aetna Cas., supra, 30 Cal.2d at 396 ("[I]t must be assumed that the Legislature was acquainted with the settled rules of statutory interpretation, and that it would have expressly provided for retrospective operation of the amendment if it had so intended"). Likewise, the relevant legislative history of SB 1421 contains no expression of retroactive intent.> While the legislative history contains an ambiguous reference to SB 1421's "effect" as being 10 to "open [] police officer personnel records in very limited circumstances," such language does not 11 manifestly state an intent to unwind previously-acquired privacy rights covering pre-2019 files. See 12 Alonso Dec., Ex. B (Senate Committee on Public Safety bill analysis of SB 1421 for hearing on 13 April 17, 2018) at 8; Myers, supra, 28 Cal.4th at 840. "[T]he wisest course is to rely on legislative 14 history only when that history itself is unambiguous." J.A. J ones Construction Co. v. Superior 15 Court (1994) 27 Cal.App.4th 1568, 1578. And, “a statute that is ambiguous with respect to 16 retroactive application is construed ... to be unambiguously prospective." Myers, supra, 28 17 Cal.4th at 841 (emphasis added). 18 The rule is clear: "a statute may be applied retroactively only if it contains express 19 language of retroactivity or if other sources provide a clear and unavoidable implication that the 20 Legislature intended retroactive application. [citation]." Bullard v. California State Automobile 21 Assn. (2005) 129 Cal.App.4th 211, 217 (emphasis added). SB 1421 contains no "express language 22 of retroactivity" and nothing in the relevant legislative history indicates even an implied 23 retroactive intent. SB 1421's amendments cannot lawfully be applied to rescind previously- 24 25 5 The only mention in the history of a potential retroactive application comes from a lobbying organization's opposition to the bill. Alonso Dec., Ex. B (Senate Committee on Public Safety bill analysis of SB 1421 for 26 hearing on April 17, 2018) at 16 ("[Our] reading of Senate Bill 1421 is that making the records of an officer's 27 lawful and in policy conduct is retroactive in its impact"). This reference is irrelevant, however, because it does not provide any insight into the Legislature's collective intent in enacting SB 1421; lobbyists' letters "do not aid 28 in [the] interpretation of the statute" because they "merely state the individual opinions of their authors." Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1066 n. 5. MESSING ADAM & JASMINE LLP 00066873-1 10 ATTORNEYSAT LAW FRESNO DSA’S MPA ISO EX PARTE APPL FOR ALTERNATIVE WRIT OF MANDATE; REQUEST FOR STAY acquired privacy rights over materials created prior to the statute's effective date. Accordingly, Respondents' stated intent to apply SB 1421's amendments retroactively is unlawful. 2 Absent a stay, the DSA’s members will suffer irreparable harm There can no legitimate dispute that if the County discloses contents of personnel records that have long been held subject to a statutory right of privacy in response to PRA requests under SB 1412, particularly where the scope of SB 1421 is in obvious and highly contested dispute, it will cause substantial irreparable harm to those DSA members whose files are implicated. Novar Corp. v. Bureau of Collection & Investigative Services (1984) 160 Cal.App.3d 1, 5 ("[I]t is well settled that where the enforcement of a statute may cause irreparable injury, the injured party may seek to 10 enjoin its enforcement"). In every action filed by law enforcement unions in connection with the 11 scope of SB 1421, the superior courts have granted either a temporary restraining order or 12 alternative writ, as respectively requested, thus implicitly recognizing the condition of irreparable 13 harm the DSA raises here. See Alonso Dec., §2. 14 Moreover, Peace Officers have no adequate legal remedy to compensate them for the 15 unlawful disclosure of their confidential information. The damage caused by unlawful disclosure of 16 confidential information is immediate — the mere disclosure of that information to unauthorized 17 individuals constitutes the harm suffered because, by definition, the confidentiality no longer exists 18 and cannot be restored. Once such information is in the public domain, there is no practical way to 19 unwind that, including by way of an action for money damages. Rosales v. City of Los Angeles 20 (2000) 82 Cal.App.4th 419, 427-428 ("violation of the statutory procedures for disclosure of 21 police personnel records does not give rise to a private right of action for damages"). To echo the 22 State’s Attorney General: “When it comes to disclosing a person’s private information, you don’t 23 get a second chance to get it right.” 24 https://www.sacbee.com/news/state/california/article226293420.html (emphasis added) 25 By contrast, any harm suf