The Copley Press v. Super. Ct. 9/16/04 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D042251

Case Date: 09/16/2004

Preview:Filed 9/16/04

CERTIFIED FOR PUBLICATION COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE COPLEY PRESS, INC., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; COUNTY OF SAN DIEGO et al., Real Parties in Interest.

D042251 (San Diego County Super. Ct. No. GIC807922)

Petition for Writ of Mandate from an order of the Superior Court of San Diego County, Wayne Peterson, Judge. Petition denied in part and granted in part. Gray Cary Ware & Freidenrich, Guylyn R. Cummins; Harold W. Fuson, Jr.; Judith L. Fanshaw; and Scott A. Wahrenbrock for Petitioner. Casey Gwinn, City Attorney, Anita M. Noone, Assistant City Attorney, and James M. Chapin, Deputy City Attorney, for City of San Diego and City of San Diego Civil Service Commission as Amici Curiae on behalf of Petitioner.

No appearance for Respondent. John J. Sansone, County Counsel, and William H. Songer, Deputy County Counsel, for Real Parties in Interest County of San Diego and San Diego County Civil Service Commission. Bobbitt & Pinckard and Everett L. Bobbitt for Real Parties in Interest San Diego Deputy Sheriffs' Association and San Diego Police Officers' Association. Real party in interest County of San Diego Civil Service Commission (CSC) adopted rules providing that if a peace officer does not request the public be admitted to his or her disciplinary appeal hearing held pursuant to Government Code section 3304, subdivision (b)1 (the appeal hearing), the CSC will close the appeal hearing to the public and conceal the identity of the appealing police officer. Petitioner The Copley Press, Inc., (Copley) challenges the validity of the appeal hearing closure rules. Copley also contends its postappeal proceeding request to the CSC for the identity of the officer involved in the proceeding, transcripts of the appeal proceedings, and the evidence introduced and documents created in connection with the appeal was improperly rejected. The closed appeal hearing rules and denial of Copley's request for information were based on the decision of this court in San Diego Police Officers Assn. v. City of San Diego Civil Service Com. (2002) 104 Cal.App.4th 275 (SDPOA), which addressed a

1 All further statutory references are to the Government Code unless otherwise specified.

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narrow question of the applicability of Penal Code section 832.7 (section 832.7) in peace officer disciplinary appeal hearings.2 I FACTUAL AND PROCEDURAL BACKGROUND In early 2003 Copley learned that a disciplinary appeal by a peace officer was scheduled for hearing before the CSC as case No. 2003-0003. However, the CSC agenda stated that "the identity of the peace officer is held confidential per Penal Code section 832.7 [citing SDPOA]." Copley learned the peace officer had requested a closed hearing under the CSC's interim rules, which provided that if the peace officer requested a closed appeal hearing the CSC would close the hearing and conceal the identity of the appealing peace officer. The CSC's interim rules were adopted after and in response to the SDPOA decision. Copley appeared before the CSC and moved for access to the appeal hearing but the motion was denied. In March 2003, after the conclusion of the disciplinary appeal, Copley made a series of requests to real parties in interest County of San Diego (County) and the CSC, pursuant to the California Public Records Act (CPRA), seeking materials related to the appeal in case No. 2003-0003. Copley's CPRA request sought documents filed with or submitted to the CSC in connection with Case No. 2003-0003, including

2 Here, the peace officer demanded a closed hearing rather than an open hearing. (See Caloca v. County of San Diego (2002) 102 Cal.App.4th 433, 442-447.) Accordingly, the parties do not address and we do not consider whether an officer who elects an open hearing thereby waives the protections of section 832.7.

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documents concerning the officer's termination or discipline; documents created by the CSC in connection with Case No. 2003-0003, including its findings and decision; any documents containing its findings or decision; and any tape recordings made of the appeal hearing. The CSC denied the requests under section 6254, subdivisions (c) and (k). Copley filed a writ petition in superior court, and a complaint for declaratory and injunctive relief, seeking disclosure of the documents and other information sought by Copley's CPRA requests and a declaration that the practice of closing appeal hearings was unlawful. On May 14, 2003, the trial court, relying on SDPOA, denied Copley any relief. The trial court's minute order provided: "The Court finds this matter is controlled by the holdings of [SDPOA] and Penal Code sections 832.7 and 832.8." On May 21, 2003, Copley made a CPRA request to the County and the CSC seeking documents concerning Case No. 2003-0003 that may have been received or created by the CSC after Copley's original requests, including the CSC's findings and decision in Case No. 2003-0003. The CSC thereafter provided various documents to Copley, including the Order for Termination citing the grounds for discipline and an outline of the facts supporting each ground, the hearing officer's recommendation that the CSC accept a Stipulated Agreement regarding disposition of the appeal, and the minutes of the CSC proceedings approving the recommended disposition. The involved peace officer and the Sheriff's Department stipulated the peace officer would withdraw his appeal, voluntarily resign his position, and admit to the factual validity of six of the seven causes underlying the basis for discipline; and the Sheriff's Department would withdraw its termination action against the peace officer and change his exit status to "terminated4

resignation by mutual consent." However, the peace officer's identity was redacted from each of the disclosed documents. Copley then filed this petition for writ of mandate to review the trial court's May 14, 2003 order denying Copley any relief;3 we issued an order to show cause and held oral argument. II ANALYSIS A. SDPOA and Section 3304 Appeal Hearings In SDPOA, this court considered whether the employer's routine practice of introducing a peace officer's personnel records at an appeal hearing open to the public was inconsistent with section 832.7's confidentiality provisions.4 (SDPOA, supra, 104 Cal.App.4th at p. 280.) We concluded section 832.7 made peace officer personnel records confidential regardless of the context in which the employer proposed to disclose those records, and therefore held "employing agencies may not freely disclose these records at public disciplinary appeal hearings if the affected officer asserts an objection." (Id. at pp. 287-288.) However, SDPOA expressly cautioned that its decision was "limited to the relief sought in the petition, which, in this case, is a declaration that [Penal Code]

3 A trial court order denying a request for disclosure under the CPRA is reviewable by petition for extraordinary writ addressed to the appellate court. (

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