NEWSLETTER

Table Of Contents PITCHESS UPDATE Welcome Supreme Court Decision on the Limits of Pitchess Type Discovery ACTS Benefits for Cities Adopting a Claim Filing Requirement under the Tort Claims Act Traffic Videotapes and the California Public Records Act FIRM NEWS Paul Coble to Serve as Pro Bono Counsel to Law Enforcement Intelligence Unit Foundation Attorney Spotlight: Michael R. Capizzi Upcoming Events

I PITCHESS UPDATE

WELCOME SUPREME COURT DECISION ON THE LIMITS OF PITCHESS TYPE DISCOVERY

Gregory P. Palmer and Krista McNevin Jee authored an amicus brief on behalf of 79 California cities, California Police Officers Association California Police Chiefs Association, and the California State Sheriffs Association in which the Supreme Court ruled in favor of their position on whether a protective order which limits the use of such material to the case to which it pertains is consistent with the law in Alford v. Superior Court (People), 2003 Cal. Lexis 1293. The Supreme Court, in agreement with their amicus brief, found that pursuant to Evidence Code section 1045 (e) the use of the material generated from a Pitchess motion would be confined to that case where it was already shown to be material to the subject matter of the litigation.

The Supreme Court also found against the public defender who argued that a protective order preventing them from sharing Pitchess information would force them to needlessly file Pitchess motion in subsequent cases and would impede their ability to represent their clients. Therefore if agency counsel handling Pitchess motions would routinely seek protective orders such as the one authorized by this ruling, this should prevent the practice of some public defender's officers in maintaining a data base with Pitchess information accessible.

Additionally, the Supreme Court ruled that the prosecution is not entitled to contemporaneous access to Pitchess information which is ordered disclosed to the defense. The district attorney isentitled to notice of the motion and the ability to respond to questions from the trial court about matters pertaining to the motion. The prosecutor's right to the information ripens when the defense intends to call one of the witnesses it located with the Pitchess information pursuant to the reciprocal discovery rules. Penal Code § 1054.3 (2003). However the prosecution remains free to seek Pitchess disclosure by complying on their own with the Pitchess discovery requirements or they can interview the officer themselves to learn available impeachment material. Alford v. Superior Court (People), 2003 Cal. Lexis 1293. For more in depth coverage of this subject, please see "Palmer's Pitchess Update," Volume 4, Issue 1, (March 4, 2003). Job well done Gregory P. Palmer and Krista McNevin Jee!

II. ACTS

BENEFITS FOR CITIES ADOPTING A CLAIM FILING REQUIREMENT UNDER THE TORT CLAIMS ACT

In a article written by attorneys Kevin D. Siegal and Anne Q. Pollack entitled "Local Claims Filing Regulations," February 27, 2003, the authors detail the Torts Claims Act as it relates to local public agencies: City Attorneys Department, League of California Cities, Continuing Education Seminar, For Municipal Attorneys, Local Claims Filing Regulations (2003). Here are the highlights:

The Tort Claims Act establishes the basic principles of public agency liability for tort or contract claims, Government Code section 810 et seq. It establishes both substantive rules for public agency damages liability and procedural rules under which a claimant may seek a damage award from a public agency. Gov. Code, sections 945.6 and 946. The procedural rules include the requirement of filing an administrative claim within the applicable six-month or one-year statute of limitation period prior to the filing of a civil action against the public agency. Id. at 1.

If substantive liability is possible, the procedural requirements allow public agencies to timely investigate claims and to reduce litigation expenses and potential judgments. Also the statute of limitations, a procedural rule, may act to bar some claims which would otherwise be substantively valid. See City of Ontario v. Superior Court 12 Cal. App. 4th 894, 902-03 (1993); see also Crow v. State 222 Cal. App. 3d 192, 202 (1990); Siegal & Pollack at 1.

Government Code section 905 excludes twelve categories of damage claims from the Tort Claims Act, many of which have specified claims procedures provided in other statutes. Some of the categories of claims excluded are Revenue and Taxation Code claims or other statute for refunds of illegally collected taxes; bond interest or principal interest claims or any other financial instrument; State or other public agency claims; welfare claims; claims by public employees for fees, salaries, wages, mileage or other expenses and allowances; and public retirement or pension system claims. See Gov't Code §905 for an exhaustive list; Siegal & Pollack at 1-2.

However Government Code section 935 provides excluded claims, which are not governed by other statutes or regulations may be covered by local agency charter, ordinance or regulation. Pursuant to section 935 and judicial decision for both charter and general law cities, municipalities and other local agencies may adopt ordinances which specifically require the filing of an administrative claim for those claims which would otherwise be excluded under section 905. See Pasadena Hotel Development Venture v. City of Pasadena 119 Cal. App. 3d 412 (1981); City of Ontario, 12 Cal. App. 4th 894; Siegal & Pollack at 1-2.

The enactment of local claims procedures can be of great assistance to cities. The following cases are illustrative of this point:

City of Ontario: Where the State filed an action for equitable relief against the City and the City demurred on the basis that the State had not filed a claim with the City and that the claim would be barred by the City's statute of limitations. Held: The express intent of the City's ordinance was to take advantage of section 935. Section 935 "does not incorporate any suggestion whatsoever that it does not apply to claims by the State." The court of appeal further stated that sections 905 and 935, read together are clear and section 905 creates exemptions from the state-mandated claims procedure; section 935 permits local public entities to enact their own procedures to cover exempted claims. City of Ontario, 12 Cal. App. 4th at 901- 02; Siegal & Pollack at 2.

Volkswagen Pacific, Inc. v. City of Los Angeles 7 Cal. 3d 48, 60-61 (1972): Held: A city may adopt regulations requiring a Government Code claim as a prerequisite to a lawsuit for the refund of local taxes. Siegal & Pollack at page 3.

Pasadena Hotel, 119 Cal. App. 3d 412 (1981): Taxpayer filed a claim with the City under the four year Tax and Revenue and Taxation Code statute of limitation for an overpayment in 1976. However, there was a City charter and a municipal code provision which required that claims for tax refunds to be filed within one year. Held: Revenue and Taxation code section regarding the statute of limitation did not relate to the facts of this case and the shorter one year statute of limitation applied making the taxpayer's claim untimely. Therefore, cities should adopt a claims filing ordinance under Government Code section 935 in order to limit their liability. Siegal & Pollack at page 3.

However, Howard Jarvis Taxpayers Association v. City of La Habra, 2001 Cal. Lexis 4820, dealt with a more than three year old utility users tax ordinance. City taxpayer sued the City claiming that the general tax was required to be approved by the voters. The City argued that the applicable statute of limitations period was three years pursuant to Code of Civil Procedure section 338 (a) (an action upon a liability created by statute) and that the limitations period commenced upon enactment of the tax ordinance. Held: While plaintiffs could have brought suit as soon as the ordinance was enacted and did not have to wait for a court ruling that Proposition 62 was constitutional, their claim continually accrued every time the City collected the tax. Also problematic for the City was that tax liability claims exempted from the Tort Claims Act claims filing provisions, the applicable statute of limitations period was three years pursuant to Code of Civil Procedure section 338. Although this case did not cover the Tort Claims Act or sections 905 and 935, it produced a valuable lesson. Cities that have enacted an ordinance pursuant to section 935 providing for a claims-filing procedure for those claims exempted by section 905, may avoid altogether or at least greatly decrease liability for such claims through the application of the one-year statute provided by the Tort Claims Act. Once a city establishes a claims-filing procedure, compliance with its provisions is a requirement to filing a lawsuit. Failing to file a claim within the Tort Claims Act's statute of limitations bars the lawsuit. Even if the statute continually accrues, the City's liability is decreased to only those claims accruing within the past year. Cities must be aware that local regulations providing for claims-filing procedures generally do not apply retroactively unless they explicitly provide so. Adler v. Los Angeles Unified Sch. Dist. 98 Cal.App.3d 280, 287 (1979); Siegal & Pollack at 4.

In conclusion, all cities without such an ordinance are well-advised to adopt a claims filing ordinance, at a minimum to cover themselves for future claims. Siegal & Pollack at 4.

TRAFFIC VIDEOTAPES AND THE CALIFORNIA PUBLIC RECORDS ACT

Many cities in California use cameras installed on traffic signal poles to observe and record traffic conditions. This article addresses whether videotapes produced from these recordings must be disclosed to the public upon request and whether California law prohibits their destruction.

The California Public Records Act ("CPRA") states that public records are generally subject to inspection. Cal. Gov't Code § 6253 (2003). In order to determine whether traffic videotapes are subject to the CPRA, it is necessary to evaluate whether videotapes are within the meaning of "public records."

A "public record" is defined as any writing containing information relating to the conduct of the public's business. Cal. Gov't Code § 6252 (e) (2003). "Writing" is defined to include any means of recording including pictures, sounds, symbols, or combination thereof. Cal. Gov't Code § 6252 (f) (2003).

Videotapes fall within the meaning of a "writing" because videotapes are the combination of pictures and sounds. And because these videotapes are recorded by the city for use of its information to conduct business relating to the public, the videotapes are "public records" and are subject to inspection by the public.

The CPRA recognizes that certain records should not be made public in order to protect the safety and efficiency of government operation and exempts those records from public disclosure. Cal. Gov't. Code § 6254 (2003). Particularly, Government Code section 6254 (f) exempts disclosure of investigatory files compiled for law enforcement purposes. Cal. Gov't Code § 6254 (f) (2003).

California case law suggests that under section 6254 (f) public records are exempt from disclosure only when: (1) the records were compiled for the purpose of determining a violation of the law; and (2) the prospect of enforcement proceedings is concrete and definite. Haynie v. Superior Court of Los Angeles, 26 Cal. 4th 1061, 1071 (2001); Uribe v. Howie, 19 Cal. App. 3d 194, 212-13 (1971).

In most cases, cities use recordings to respond to traffic conditions. This includes road violations and therefore, satisfies the "purpose" requirement. However, some recordings may not reveal law violations and therefore, will not lead to "the prospect of enforcement proceedings." These videotapes would not fall under section 6254 (f) and thus, will be subject to public disclosure.

The next concern is whether California law prohibits the destruction of traffic videotapes. The process for destruction of city records is dictated by the nature of the record to be destroyed and/or the person destroying the record.

The head of a city department may destroy any city record, if approval is obtained from the legislative body by resolution and upon written consent of the city attorney. Cal. Gov't Code § 34090 (2003). However, this section does not authorize the destruction of records less than two years old. Cal. Gov't Code § 34090 (2003). Thus, traffic videotapes shall be maintained for two years prior to its destruction by the head of a city department.

A city officer may destroy any original record if the following are met: (1) the record is reproduced in a way that does not permit changes to the original; (2) the device used to reproduce the record is accurate; (3) the reproduction is accessible to the public; and (4) a copy of the medium reproduction is kept in a safe and separate place. Cal. Gov't Code § 34090.5 (2003).

Finally, the head of a city department may destroy recordings of routine video monitoring after one year subject to the approval by the legislative body and agency attorney. Cal. Gov't Code § 34090.6 (2003). The one year retention period may be reduced to ninety days if the city keeps another record of the event that is recorded. Cal. Gov't Code §34090.7(2003)."Routine video monitoring" means videotaping by an electronic imaging system designed to record the regular and ongoing operations of city departments. Cal. Gov't Code § 34090.7 (2003). This definition would encompass the videotaping contemplated for traffic monitoring purposes.

III. FIRM NEWS

PAUL COBLE TO SERVE AS PRO BONO COUNSEL TO LAW ENFORCEMENT INTELLIGENCE UNIT FOUNDATION

Paul Coble, an associate with Jones & Mayer, has volunteered to serve as legal counsel to the Law Enforcement Intelligence Unit ("LEIU.") Foundation.

LEIU is a national criminal justice organization devoted to establishing standards for gathering of criminal intelligence information, improving the professionalism and integrity of police intelligence operations, and facilitating the exchange of information between local, state and national criminal justice and intelligence entities. The LEIU Foundation is a not-for-profit corporation which grew out of the desire of the parent organization to provide a medium for financial and logistical support in furtherance of the training objectives of LEIU.

Mr. Coble looks forward to drawing upon his 21 years of police service, together with his legal training and expertise, in assisting the Foundation in meeting these objectives.

ATTORNEY SPOTLIGHT:MICHAEL R. CAPIZZI, ESQ.