ROCKNE A. LUCIA, IR. 109349]
TIMOTHY K. TALBOT 173456] 
ZACHERY A. LOPES 284394] {12111
RAINS LUCIA STERN ST. PHALLE 5 
2300 Contra Costa Blvd., Suite 500 11,, 
Pleasant Hill, CA 94523
Telephone: 925.609.1699
Facsimile: 925.609.1690
Email: rluoia@rlslawyers.com

zlopes@rlslawyers.com

MICHAEL L. RAINS 91013] i
I. ll l. 

Attorneys for Petitioners/Plaintiffs

WALNUT CREEK POLICE ASSOCIATION
ANTIOCH POLICE ASSOCIATION

CONTRA COSTA COUNTY DEPUTY ASSOCIATION
CONCORD POLICE ASSOCIATION

MARTINEZ POLICE ASSOCIATION

RICHMOND POLICE ASSOCIATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF CONTRA COSTA

WALNUT CREEK POLICE CASE NO.: 
ASSOCIATION,
. . . . REPLY TO
1 ff
6 1 Iona/P am? OPPOSITIONS 0F INTERVENORS ACLU
vs. OF NORTHERN CALIFORNIA AND
CITY OF WALNUT TOM RICHARD PEREZ

CHAPLIN, Chief of Police; and DOES 1

through 20 inclusive CAPTION AS DIRECTED BY 

Respondents/Defendants, DATE: FEBRUARY 8, 2019
TIME: 1:30 PM.
FIRST AMENDMENT COALITION, DEPT.: 12
CALIFORNIA NEWSPAPERS

PARTNERSHIP L.P. (d/b/a Bay Area News?
Group). INVESTIGATIVE STUDIOS,

IN C., and THE CENTER FOR PETITION FILED: JANUARY 22, 2019
INVESTIGATIVE REPORTING,

and
ACLU OF NORTHERN CALIFORNIA,

Intervenors.

 

 

 

 

 

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ANTIOCH POLICE CASE N01 N19-0170

ASSOCIATION,

Petitioner/Plaintiff,

VS, PETITION FILED: JANUARY 24, 2019

CITY OF TAWANY
BROOKS, Chief of Police; and Does 1
through 20, inclusive, 

Respondents/Defendants,

FIRST AMENDIVLENT COALITION,
CALIFORNIA NEWSPAPERS
L.P. (d/b/a Bay Area News
Group), INVESTIGATIVE STUDIOS,
KQED, INC, and THE CENTER FOR
INVESTIGATIVE REPORTING,

and
ACLU CALIFORNIA,

Intervenors.

 

CONTRA COSTA COUNTY DEPUTY CASE N04 N19-0097

SHERIFF ASSOCIATION,

Petitioner/Plaintiff,

vs_ PETITION FILED: JANUARY 24, 2019

COUNTY OF CONTRA DAVID
O. LIVINGSTON, Sheriff Of the CoUnty Of
Contra Costa; and Does I through 20,
inclusive,

Respondents/Defendants,

FIRST AMENDMENT COALITION,
CALIFORNIA NEWSPAPERS
PARTNERSHIP L.P. (d/b/a Bay Area News
Group), INVESTIGATIVE STUDIOS,
KQED, INC, and THE CENTER FOR
INVESTIGATIVE REPORTING,

and
ACLU OF NORTHERN CALIFORNIA,

 

Intervenors.

 

 

 

 

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RICHAIU) PEREZ IN SUPPORT OF ALTERNATIVE WRIT OF MANDATE

 

CONCORD POLICE ASSOCIATION, CASE N03 N19-0166

Petitioner/Plaintiff,

VS.

CITY OF GUY SWAN GER,
Chief of Police; and Does 1 through 20,
inclusive,

PETITION FILED: JANUARY 24, 2019

Respondents/Defendants,

FIRST AMENDMENT COALITION,
CALIFORNIA NEWSPAPERS
PARTNERSHIP L.P. (d/b/a Bay Area News
Group), INVESTIGATIVE STUDIOS,
KQED, IN C., and THE CENTER FOR
INVESTIGATIVE REPORTING,

and
ACLU OF NORTHERN CALIFORNIA,

Intervenors.

 

MARTINEZ POLICE CASE 

ASSOCIATION,

Petitioner/Plaintiff,

vs, PETITION FILED: JANUARY 24, 2019

CITY OF MANJIT SAPPAL,
Chief of Police; and Does 1 through 20,
inclusive,

Respondents/Defendants,

FIRST AMENDMENT COALITION,
CALIFORNIA NEWSPAPERS
PARTNERSHIP L.P. (d/b/a Bay Area News
Group), INVESTIGATIVE STUDIOS,
KQED, INC., and THE CENTER FOR
INVESTIGATIVE REPORTING,

and
ACLU OF NORTHERN CALIFORNIA,

Intervenors.

 

 

 

 

 

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RICHMOND POLICE CASE N19-0169

ASSOCIATION,

Petitioner/Plaintiff,

vs, PETITION FILED: JANUARY 24, 2019

CITY OF 
BROWN, Chief Of Police; and Does 1
through 20, inclusive,

Respondents/Defendants,

FIRST AMENDMENT COALITION,
CALIFORNIA NEWSPAPERS
PARTNERSHIP L.P. (d/b/a Bay Area News
Group), INVESTIGATIVE STUDIOS,
KQED, INC, and THE CENTER FOR
INVESTIGATIVE REPORTING,

and

ACLU OF NORTHERN CALIFORNIA and
RICHARD PEREZ,

Intervenors.

 

 

 

 

 

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TABLE OF CONTENTS

I. INTRODUCTION 1
II. ARGUMENT 2
A. SB 1421 Does Not Include an Express Retroactivity Provision 2
B. The Legislative History Contains No Clear Intent to Apply SB 1421?s Amendments
5
C. Applying SB 1421?s Amendments to Rescind Previously?Acquired Confidentiality
Rights Would Unquestionably Constitute a Retroactive Application 6 
D. Retroactive Application of SB 1421 Would Impermissibly Affect Peace Of?cers?
Preexisting Privacy Rights 9
CONCLUSION 1 1
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TABLE OF AUTHORITIES

Cases

Aetna Cas. Sur. Co. v. Indus. Accident Comm ?n

(1947) 30 Ca1.2d 388 6, 8
Albertson v. Superior Court 

(2001) 25 Cal.4th 796 4
Arthur Andersen v. Superior Court

(1998) 67 Cal.App.4th 1481 5
Bell v. Farmers Ins. Exchange

(2006) 135 Ca1.App.4th 1138 3
Callet v. Alioto

(1930) 210 Cal. 65 9
Chambers v. Superior Court

(2007) 42 Ca1.4th 673 10
City of San Diego v. Superior Court

(1981) 136 Ca1.App.3d 236 7
City of Santa Cruz v. Superior Court 

(1989) 49 Ca1.3d 74 9
Commission on Peace O?icer Standards Training 12. Superior Court

(2007) 42 Ca1.4th 278 4,9
Copley Press, Inc. v. Superior Court

(2006) 39 Cal.4th 1272 9
Hackett v. Superior Court

(1993) 13 Ca1.App.4th 96 4, 7
In re EJ.

(2010) 47 Ca1.4th 1258 3
1A. Jones Construction Co. v. Superior Court

(1994) 27 Cal.App.4th 1568 5
Kizer 12. Hanna .

(1989) 48 Ca1.3d 1 7, 8

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McClung 12. Employment Dev. Dept.

(2004) 34 Ca1.4th 467 8
Michael v. Gates

(1995) 38 Ca1.App.4th 737 9
Myers v. Phillip Morris Cos.

(2002) 28 Cal.4th 828 i 5, 6
People v. Brown .

(2012) 54 Cal.4th 314 5
People v. MoClinton

(2018) 29 Cal.App.5th 738 8
People v. Mooc .

(2001) 26 Cal.4th 1216, 1227 9
People v. Superior Court of Orange County (Smith)

(2018) 6 Cal.5th 457 10
Williams v. Gareetti 

(1993) 5 Cal.4th 561 5
Younger v. Superior Court

(1978) 21 Ca1.3d 102 9
Statutes
Code of Civil Procedure 1085 4
Government Code 6250 1
Government Code 6253 4 
Penal Code 832.5 3
Penal Code 832.7 2, 3, 10
Penal Code 832.7(3) 6
Penal Code . . 10
Penal Code 832.8 2, 3
Penal Code 3003.5(b) 3



 

 

 

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California Constitution

Cal. Const. art. I, 3 ?7

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INTRODUCTION

Petitioners Walnut Creek Police Of?cers? Association Antioch Police Officers?
Association Contra Costa County?Deputy Sheriffs? Association Concord
Police Association Martinez Police Officers? Association and Richmond Police
Of?cers? Association (collectively referred to as ?Petitioners? or ?Associations?) hereby
submit their Reply Brief to the Oppositions filed by Intervenors ACLU of Northern California
and Richard Perez (?Perez?)l (collectively referred to as ?Intervenors?).

Intervenors contend that the plain legislative language and intent establish that California
Senate Bill 1421, enacted as Chapter 988 of the 2017-2018 Regular Session 1421?) must be
applied retroactively. Yet, Intervenors fail to provide any clear statement of legislative intent in either
the statute itself or in the history that meets the requisite standard to retroactively rescind privacy rights
existing prior to SB 1421 ?s operative date. Without such evidence of intent, the law requires that SB
1421 must be applied prospectively only, such that Petitioners? members retain their right to privacy of
the information contained Within their personnel files re?ecting conduct occurring prior to SB 1421?s
operative date, January 1, 2019.

Intervenors further contend that applying SB 1421 in a manner requiring the disclosure pf
personnel record information re?ecting conduct occurring prior to the new law?s operative date is not
in fact a retroactive application because the relevant triggering event, a public agency?s disclosure of
records upon request pursuant to the California Public Records Act Government Code
section 6250 et seq., occurs after the effective date of the statute. This argument must fail, however,
because it misconstrues the nature of the existing privacy rights implicated in this case. Pursuant to the
law existing prior to SB 1421, peace officers acquired an individual right to maintain the
confidentiality of their peace officer personnel ?le information, a privacy right which extends beyond
any physical records encompassing this information. Appropriately understanding this existing right is
critical, because it demonstrates that Intervenors? exclusive focus on the general obligations imposed

on peace officer employersunder the CPRA is misplaced, since the relevant triggering event for the

 

1 Mr. Perez has intervened only with respect to the Richmond Police O?icers Association matter, Case No. N19-0 1691.
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retroactivity analysis the peace of?cer conduct itself 4 occurred prior to and was completed before
SB 1421?s amendments. Focusing on general public agency Obligations under the CPRA is a red
herring it is obviously true that public agencies must disclose public records not exempt from
disclosure. The issues here, however, appropriately turn on whether SB 1421 removed the exemption
that has already attached to personnel file information arising prior to SB 1421?s amendments. That is,
whether the Legislature intended to eviscerate individual privacy rights to personnel file information
acquired prior to SB 1421 ?s operative date. Disclosing information reflecting conduct which occurred
prior to SB 1421?s operative date would clearly retroactively eviscerate this already-acquired
con?dentiality privilege. Because there is no indication the Legislature intended as such, applying SB
1421?s amendments to disclose such information constitutes an unlawful retroactive application of the
new law.
II. ARGUMENT
A. SB 1421 DOES OT INCLUDE AN EXPRESS RETROACTIVITY PROVISION

As re?ected in the TRO Applications, the plain statutory language of SB 1421 does not include
an express retroactivity provision nor establish that the statute should be applied retroactively.
Therefore, pursuant to the clear tenets of the retroactive analysis, the Court must conclude that the
statute should Operate prospectively only. Intervenors do not cite to any clear statutory language that
would indicate an intent to apply SB 1421 retroactively. Instead, they rely on the statutes? continued
use of the words ?maintained? and ?any? as evidence of clear legislative intent. However, the
continued use of the word ?maintained? here cannot represent the clear legislative intent required to
establish retroactive application because the statute does not specify that all records already
maintained are new subject to disclosure. ?Maintain? by itself does not mean to preserve what is
already in existence as opposed to preserve certain records going forward. Moreover, the use of the
word ?maintain? cannot establish the Legislature?s intent to retroactively apply SB 1421?s amendments
because the word was already present in sections 832.7 and 832.8 prior to SB 1421, with a speci?c
purpose unrelated to a temporal application of its terms drafted by a Legislature that deemed all
personnel files con?dential. Section 832.7 always included the word ?maintained? so as to make clear

that the con?dentiality right extended beyond a peace Of?cer?s of?cial personnel file retained by an
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employer to include records held by an employing agency pursuant to its obligations under Section
832.5. (Penal Code 832.7 [?personnel records and records maintained by any state or local agency
pursuant to Section 832. 5, or information obtained from these records, are con?dential. . Emphasis
added.) The use of the word ?maintained? in Section 832.8 is merely a reference to those records
identi?ed in Section 832.7, and also makes clear that the con?dentiality right extends to any type of
?le held by the particular peace of?cer?s employing agency, no matter how designated, which includes
the enumerated categories of information, identi?ed by reference to a particular peace of?cer. (Penal
Code 832.8 [?As used in Section 832.7, ?personnel records? means any ?le maintained under that
individual?s name by his or her employing agency and containing records relating to any of the
following. . 

The use of the words ?any? and ?all? also does not support the contention that all past records
must be disclosed. The use of the word ?any? does not evidence a clear intention to apply statutory
amendments retroactively, as opposed to a continued intent to ensure broad application of the statutory
provisions going forward. Indeed, in neither case cited by Intervenors was the use of the word ?any?
held to establish the clear statutory language necessary to apply a statute retroactively. For example, in
In re EJ. (2010) 47 Cal.4th 125 8, the Supreme Court determined that a statute mandating certain
residency requirements for paroled sex offenders did not apply retroactively, as ?[e]ach of these four
petitioners was released from custody on his current parole and took up residency in noncompliant
housing after section effective date.? (Id. at p. 1272.) In Bell 12. Farmers Ins. Exchange
(2006) 135 Cal.App.4th 1138, the Court of Appeal noted that the use of the word ?all? was
?compatible with the premise that the Legislature intended the statute to clarify existing law;? (Id. at p.
1146.) As the court noted, legislative clari?cation establishes the true legislative intent without
changing the past legal consequences of the statute as properly understood.? (Ibid) Here, on the other
hand, there is no indication that SB 1421 did not ?clarify? existing law regarding the privacy rights
possessed by of?cers it sought to prospectively remove those rights.

Furthermore, like the phrase ?maintained,? the word ?any? predated SB 1421 and had a similar
speci?c purpose unrelated to a temporal application of its terms to ensure that the con?dentiality

right extended to records held by an employing agency outside of an of?cially-designated ?personnel

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(Hackett v. Superior Court (1993) 13 Cal.App.4th 96, 99 [?there is nothing in the statutory
scheme or its history suggesting a legislative intent to exclude from the privileged information which
happens to be obtainable elsewhere.?] Original emphasis.) This is because the con?dentiality right is
informational, not document or record speci?c, no matter Where documents including that con?dential
information are stored by an employer. (Commission on Peace O?icer Standards Training v.
Superior Court (2007) 42 Cal.4th 278, 291 [?Cases that have addressed the question whether a
particular document is included within the term ?personnel ?les? for purposes of other statutes have
found the content of the document at issue, not the location in which it is stored, to be


Intervenors next argue thatthe statute should apply retroactively because SB 1421 operates in
conjunction with the CPRA, which requires the production of records ?in the possession of the
agency.? (Gov. Code ?6253, subd. HoWever, as the same subdivision makes clear, the agency
must still ?determine[] that the request seeks disclosable public records. . (Ibid) It is undisputed that,
previously, peace of?cer personnel records were not subject to disclosure, and could only be produced
pursuant to the Pitchess process. The issue to be adjudicated in this case is whether the preexisting
statutory exemption continues to apply for information that has already arisen or whether SB 1421 has
removed that exemption for that information retroactively. The text of the CPRA cannot help
determine whether SB 1421 should be applied retroactively because the CPRA does not contain any
indication that all existing information previously designated exempt ?om disclosure should now be
subject to such disclosure. More importantly, the CPRA is a statutory scheme for document
production. Because the Legislature knew it was amending a statute affording an information privilege,
had it intended to retroactively unwind already-acquired privacy rights to that information, it would
have unambiguously said so, rather than merely rely on coherence with a document production
scheme. (Veri?ed Petition for writ of Traditional Mandate 10815]; Complaint for Declaratory
and Injunctive Relief (?Petition?), Exhibit A, SB 1421 Legislative Counsel?s Digest
[?Existing law requires any peace of?cer personnel records or any information obtained ?om
these records, to be con?dential. . emphasis added; Arthur Andersen v. Superior Court (1998) 67

Cal.App.4th 1481, 1500 [?The Legislature is presumed to know existing law when it enacts a new

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statute. . For the same reasons, reference to existing de?nitions in the CPRA is unhelpful because
peace of?cer personnel records were presumably always fell within the general de?nition of ?public
records,? they were just exempt from disclosure.

B. THE LEGISLATIVE HISTORY CONTAINS 0 CLEAR INTENT TO APPLY SB 1421?s

AMENDMENTS RETROACTIVELY

Intervenors have failed to put forth a clear statement of legislative intent to retroactively apply
SB 1421s amendments. It is their burden to do so to overcome the strong presumption of prospective
operation. (People 12. Brown (2012) 54 Cal.4th 314, 324.) To support their contention, Intervenors cite
only to the inclusion of an opposition to SB 1421 submitted by the Los Angeles County Professional
Peace Of?cer Association (Intervenors ACLU and Richard Perez?s Opposition To
Plaintiffs? OSC Re: Preliminary Injunction (?Opposition?), p. 6.) However, merely because PPOA
opined that the law would be ?retroactive in its impact? does not mean that the Legislature so intended.
The relevant inquiry is the collective intent of the Legislature, which cannot be gleaned from the
statements of individual interested persons, even individual legislators that voted on the bill, including
the principal author of the bill herself. (Williams v. Garcetti (1993) 5 Cal.4th 561, 569 [?In construing
a statute ?we do not consider the motives or understandings of an individual legislator even if he or she
authored the Intervenors suggest that the lobbyist?s' letter ?indicates that the Legislature
intended the law to apply in just the way? stated, because the Legislature was ?warned? of a potential
retroactive application and took no action. (Opposition, p. 6.) This is a purely speculative assertion
with no supporting evidence. At best, this is an ambiguous reference to legislative intent, which falls
far short of the required standard. (Myers v. Phillip Morris Cos. (2002) 28 Cal.4th 828, 841; JA. Jones
Construction Co. v. Superior Court (1994) 27 Ca1.App.4th 1568, 1578 [?the wisest course is to rely on
legislative history only when that history itself is 

Albertson v. Superior Court (2001) 25 Cal.4th 796, cited by Intervenors, is actually instructive
of how the legislative history here fails to provide the required manifest intent of retroactivity. In that
case, not only did the ACLU raise objections to-a statute, but objections were raised by the Assembly
Committee on Public Safety. (Id. at pp. 806-07.) Thereafter, not only did the Assembly leave intact the

obj ected-to provisions, it actually amended the bill in such a way to indicate a clear intent to reject the
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concerns raised by ACLU and the Committee. (Id. at p. 807.) Here, on the other hand, there is no
evidence of any subsequent amendment to SB 1421 after the lobbyist?s opposition was noted in the
Committee Report. Intervenors have cited no authority that permits an inference of intent from the
Legislature?s failure to amend legislation, nor should this logically be the appropriate analysis. (Myers,
supra, 28 Cal.4th at p. 841 .) If the Legislature had intended SB 1421 to operate retroactively, it would
have expressly stated as such. (Aeina Cos. Sur. Co. v. Indus. Accident Comm ?n (1947) 30 Cal.2d
3 88, 396 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 Because it did not do so here, SB 1421?s amendments cannot be lawfully
applied retroactively.

C. APPLYING SB 1421?s AMENDMENTS TO RESCIND PREVIOUSLY-ACQUIRED CONFIDENTIALITY

RIGHTS WOULD UNQUESTIONABLY CONSTITUTE A RETROACTIVE APPLICATION
In a last?ditch effort to salvage their ?awed interpretation of SB 1421?s amendments,

Intervenors contend disclosing personnel ?le information which occurred prior to SB 1421?s operative
date is not a retroactive application of the new law. Intervenors? argument is premised on the assertion
that the new law only imposes new obligations upon agencies, and those obligations are prospective 
they went into effect only after January 1 and apply to CPRA requests pending after that date.
(Opposition, However, Intervenors? arguments fail for two simple reasons they
completely omit any reference to or consideration of peace of?cers? individual privacy rights to
personnel file information acquired prior to SB 1421?s Operative date, and they misconstrue SB
1421?s amendments as solely affecting the procedural obligations imposed on public agencies under
the CPRA.

As discussed in detail in Petitioners? TRO Applications, peace officers had an individual
informational confidentiality right to all their personnel ?le information prior to SB 1421?s operative
date, not merely a right prohibiting their employers from producing physical documents. This privacy
right extended beyond the actual ?files? or ?records? maintained by public agencies to encompass the
information contained in or obtained from those documents, and was readily enforced by the courts in

circumstances not involving any particular peace of?cer?s employer. (Pen. Code 832.7(a) [?Peace

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personnel records or information obtained from these records, are con?dential. . 
emphasis added]); Cal. Const. art. I, 3, subd. par. Hackei?t v. Superior Court, supra, 13
Cal.App.4th at pp. 98-99; City ofSan Diego 12. Superior Court (1981) 136 Ca1.App.3d 236, 239.) The
Legislature itself acknowledged the informational nature of the existing privilege when it enacted SB
1421. (Pet. 9, A, Legislative Counsel?s Digest.) In light of this fact, Intervenors widely miss the
mark when they premise their ?prospective? arguments on the public agencies? obligations under the
CPRA to preduce physical documents. (Opposition, pp. Noticeably absent from Intervenors?
reasoning is any reference to peace of?cers? existing individual con?dentiality right to the information
contained within their personnel records. These rights, established prior to SB 1421 ?s operative date,
exist separate and apart from any documents reflecting the con?dential information contained therein,
and any employer involvement in disclosure. (See City of San Diego, supra, 136 Cal.App.3d at p. 339
[con?dentiality right allows peace of?cer to refrain from disclosing personnel ?le information during
oral deposition] .)

Intervenors? convenient misconstruction of that previously?acquired con?dentiality right allows
them to rely on case law stating that the ?critical question for determining retroactivity usually is
whether the last act or event necessary to trigger application of the statute occurred before or after the
statute?s effective date,? to argue that the CPRA request is the ?last act or event? triggering the
retroactive analysis. (Opposition, pp. 8:10?13, 9, citations omitted.) Of course, if the con?dentiality
right is properly understood, ?the last act or event? is the peace of?cer conduct itself, not any
subsequently ?led CPRA request for the production of physical documents containing information
reflecting that conduct. At the time pre?SB 1421 peace of?cer conduct occurred, such conduct and the
information derived therefrom was ?completed? and deemed con?dential by law. Rescinding the
con?dentiality of that information constitutes a ?new legal consequence to events completed before?
the new law?s operative date a retroactive application of SB 1421.

None of the cases cited by Intervenors establish that the removal of previously?existing privacy
rights would be prospective, not retroactive. Kizer v. Hanna (1989) 48 Cal.3d 1 did not concern rights,
but instead whether an estate would need to reimburse the Department of Health Services for Medi?Cal

bene?ts received before the decedent?s death. (Id. at pp. Notably, the Supreme Court held that the

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new statute authorizing the repayment of such bene?ts ?affects only estates arising after the statute?s
effective date and that there is no legislative intent to the contrary.? (Id. at p. 7.) Accordingly, because
the estate in question was not even in existence on the effective date of the statute as the Medi?Cal
recipient was not yet deceased there could be no retroactive effect because there was simply nothing
for the statute to impact until the recipient had passed.

People v. (2018) 29 Cal.App.5th 738 is similarly inapplicable because that case is

founded upon the well?established premise that ?a law addressing the conduct of trials still addresses

conduct in the future.? (Id at p. 753; citations omitted.) Here, the appropriate focus is whether SB

1421 was intended to alter the existing legal status of information completed prior to January 1, 2019.
Moreover, the statutory amendment in McClinton narrowly tailored the disclosure of records for ?use
in [the] proceedings under this article? solely and prohibited the recipients of those records from
disclosure outside of those proceedings. (Id. at p. 751.) In this case, Petitioners? members are not
protected by statutory gag orders on the information sought by Intervenors, nor are Intervenors seeking
information for the sole purpOse of adjudicating the mental health of an accused sexually violent
predator for which medical evaluation information is necessary.

Interpreting SB 1421 ?s amendments to allow disclosure of information which arose from acts
occurring prior to the new law?s operative date would be a retroactive application. Doing so will
rescind individual con?dentiality rights already acquired by existing law when the information itself
arose, thereby significantly impacting the legal status of that information. As repeatedly stated by the
Supreme Court, 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. C0.,
supra, 30 Cal.2d at p. 391, emphasis added.) has long been established that a statute that
interferes with antecedent rights will not operate retroactively unless such retroactivity be ?the
unequivocal and in?exible import of the terms, and the manifest intention of the legislaturei??
(McClung v. Employment Dev. Dept. (2004) 34 Cal.4th 467, 475.)





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RETROACTIV APPLICATION OF SB 1421 WOULD IMPERMISSIBLY AFFECT PEACE
OFFICERS, REEXISTING PRIVACY RIGHTS

Petitioners? members? right to maintain the con?dentiality of the information contained within
their personnel files has been repeatedly recognized by the courts as a ?privacy right? not a remedy.
(People v. Mooc (2001) 26 Cal.4th 1216, 1227; Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th
1272, 1300; City ofSanta Cruz v. Superior Court (1989) 49 Cal.3d 74, 83?84.) The California
Constitution acknowledges this as a privacy right. (Cal. Const., art. I, 3, subd. par. 
Commission on Peace O?icer Standards Training v. Superior Court, supra, 42 Cal.4th at 288
[?The Constitution recognizes the right to privacy and specifically acknowledges the statutory
procedures that protect the privacy of peace Intervenors? cited authority relates to a
statutorily created remedy, not a preexisting right such as the right to privacy. cause of action or
remedy de endant on a statute falls with a repeal of the statute, even after the action thereon is
pending.? (Callet v. Alioto (1930) 210 Cal. 65, 67, emphasis added.) Younger v. Superior Court (1978)
21 Cal.3d 102 also involved a remedy, not a privacy right. (Id. at p. 109 [?there is no common law
right to erasure or return of records of an arrest not followed by a (Id. at p. 109.)

Michael v. Gates (1995) 38 Cal.App.4th 737 does not establish that a peace officer has no

privacy interest in his or her personnel file, and therefore the retroactive application of SB 1421 would
impact that existing right. First, it should be noted that the Court of Appeal was careful to limit the
holding of the case to the facts before it, in which a City Attorney accessed Michael?s personnel
records to defend against a civil suit brought by a plaintiff in which Michael was to testify as a witness
against the Department. As the Court of Appeal stated, ?We determine that the Evidence Code?s
procedural requirements are not applicable to the facts just described, and that under those
circumstances, inspection of records by the law enforcement agency and its attorney violates no
statutory or constitutional right.? (Id. at p. 740.) The Court of Appeal then recognized that the
statutory Scheme actually demands that a ?governmental agency and its lawyer will review those
records, without noticed motion or court order.? (Id. at p. 744.) Accordingly, in those circumstances,
Michael had no reasonable expectation of privacy in his records and the Pitchess process was not

violated. There are no similar facts here.
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Furthermore, merely because some information may be disclosed through the Pitchess process
does not mean that there is no right to be impaired by the retroactive application of SB 1421 or that any
reliance on that right is. improper. First, no records over ?ve years old may be produced through a
Pitchess motion, and therefore the privacy interest in those records is substantial, as they otherwise
could not be produced. Second, the amount of information required to be produced by Penal Code
section 832.7, subdivision far exceeds what is generally required to be produced following a
Pitchess motion. As the Supreme Court recognized, ?an order of disclosure ordinarily involves
revelation of only the name, address and phone number of any prior complainants and witnesses and
the dates of the incidents in question.? (Chambers v. Superior Court (2007) 42 Cal.4th 673, 679.)
Third, anything produced pursuant to a Pitchess motion is kept largely confidential, as the statute
?requires the court to impose a protective order providing that the ?records disclosed or discovered
may not be used for any purpose other than a court proceeding pursuant to applicable law.? (Id. at pp.
679?80; emphasis in original.) In contrast here, the records would be public with no limitation placed
on their use or distribution. Accordingly, merely because some information may be disclosed in limited
fashion following a Pitchess motion does not mean that peace officers lack any privacy interest in their
personnel records such that a statute removing all privacy protections would not have retroactive effect.

For this reason, People v. Superior Court of Orange County (Smith) (2018) 6 Cal.5th 457 is
distinguishable. In that case, which concerned the alleged confidentiality of communications with
mental health professionals and whether such records could be disclosed in a proceeding under the
Sexually Violent Predator Act, the Supreme Court stated, ?it is not clear why Smith assumed his
conversations with these professionals would necessarily remain forever confidential.? (Id. at p. 6.)
The Supreme Court then cited the fact that appellate courts had split on the question of whether such
records could be disclosed and that attorneys could have obtained those records even before the
statutory amendment. (Ibid) Here, on the other hand, peace officers have received assurances that their
information would be kept confidential absent limited circumstances with a protective order.






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CONCLUSION

For the foregoing reasons, and all those stated in Petitioners? TRO Applications, Petitioners

respectfully requests the Court issue the requested preliminary injunction, and grant all other requested

relief.

Dated: February 6, 2019

Respectfully Submitted,

RA1NS LUCIA STERN
ST. PHALLE SILVER, PC


Zachery A. Lopes l/
Attorneys for Petitioners/Plaintiffs
Walnut Creek Police Officers? Association
Contra Costa County Deputy Sheriffs? Association
Concord Police Association
Martinez Police Of?cers? Association
Richmond Police Of?cers? Association

Antioch Police Of?cers? Association

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REPLY TO OPPOSITION OF INTERVENORS ACLU OF NORTHERN CALIFORNIA AND
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PROOF OF SERVICE

I, Michelle Soto?Vancil, am a citizen of the United States, and am over 18 years of age. I am
employed in Contra Costa County and am not a party to the above?entitled action. My business
address is Rains Lucia Stern St. Phalle Silver, PC, 2300 Contra Costa Blvd, Suite 500, Pleasant
Hill, California 94523. On February 6, 2019 I served a true and correct copy(ies) of the following
document(s):

a REPLY TO OPPOSITIONS OF INTERVENORS ACLU OF
NORTHERN CALIFORNIA AND RICHARD PEREZ

upon all parties addressed as follows:
Walnut Creek Police O?icers?Association v. City of Walnut Creek, et al.; Case No.: 

Attorneys for Respondents City of Walnut Creek and Tom Chaplin, ChiefofPoltee
Meg Rosequist, City Attorney (mrosequist@meversnave.com)

Intervenors
Christine Sun, Esq., Attorney for ACLU Northern California 

Alan Schlosser, Esq., Attorney for ACLU Northern California (aschlosserGDaclunc.org)
Kathleen Guneratne, Esq., Attorney for ACLU Northern California (kguneratnekhaclunc.org)
Sean Riordan, Esq., Attorney for ACLU Northern California 
Tenaya Rodewald, Esq., Attorney for First Amendment Coalition (trodewald@sheppardmullincom)
James Chadwick, Esq., Attorney'for First Amendment Coalition 
David Snyder, Esq., First Amendment Coalition 

Reauestors of Information
California News Coalition 

Antioch Of?cers?Association v. City of Antioch, et Case No.: N19-0170

Attorneys for Respondents City ofAntiock and Tammany Brooks, Chief of Police
Derek Cole, Interim City Attorney (dcole@colehuber.com)

Intervenors
Christine Sun, Esq., Attorney for ACLU Northern California (csun@aclunc.org) -

Alan Schlosser, Esq., Attorney for ACLU Northern California (aschlosser@aclunc.org)
Kathleen Guneratne, Esq., Attorney for ACLU Northern California 
Sean Riordan, Esq., Attorney for ACLU Northern California (sriordiankDaclunc.org)

Tenaya Rodewald, Esq., Attorney for First Amendment Coalition (trodewald@sheppardmullin.com)
James Chadwick, Esq., Attorney for First Amendment Coalition (ichadwick@sheppardmullincom)
David Snyder, Esq, First Amendment Coalition 

Requestors of Information
Tracy Rosenberg of Media Alliance 
ACLU of Southern California (prarequestmlac?lusocal.org)

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REPLY TO OPPOSITION OF INTERVENORS ACLU OF NORTHERN CALIFORNIA AND
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Joaquin Palomino, San Francisco Chronicle 
- California News Coalition 



Contra Costa Deputy Sherif??Association v. County of Contra Costa, et al.; Case No.: NI9-0097

Attorneys for Respondents County. of Contra Costa and David O. Livingston. Sheriff
Mary Ann McNett Mason (Ma1yAnn.Mason@cc.countv.us)

Intervenors
Christine Sun, Esq., Attorney for ACLU Northern California (csun@aclunc.org)

. Alan Schlosser, Esq., Attorney for ACLU Northern California 
Kathleen Guneratne, Esq., Attorney for ACLU Northern California (kguneratne?laclunc.org)
Sean Riordan, Esq., Attorney for ACLU Northern California (sriordian@aclunc.org)
Tenaya Rodewald, Esq., Attorney for First Amendment Coalition (trodewald@sheppardmullin.com)
James Chadwick, Esq., Attorney for First Amendment Coalition (ichadwick@sheppardmullin.com)
David Snyder, Esq., First Amendment Coalition 

 

Requestors of Information
Darwin Bond Graham, East Bay Express 
Christine Sun, ACLU of Northern California (csun@aclunc.org)
California News Coalition 

 

Concord Police Association v. City of Concord, et Case No.: 

Attorneys for Respondents City of Concord and Guy Swanger, Chief of Police
Joshua K. Clendenin, Senior City Attorney (J 

Intervenors
Christine Sun, Esq., Attorney for ACLU Northern California (csungtgacluneorg)

Alan Schlosser, Esq., Attorney for ACLU Northern California (aschlosser@aclunc.org)
Kathleen Guneratne, Esq., Attorney for ACLU Northern California (kguneratne@aclunc.org)
Sean Riordan, Esq., Attorney for ACLU Northern California (sriordian@aclur10.org)

Tenaya Rodewald, Esq., Attorney for First Amendment Coalition 
James Chadwick, Esq., Attorney for First Amendment Coalition 
David Snyder, Esq., First Amendment Coalition 

Requestors of Information
Joaquin Palomino, San Francisco Chronicle (JPalornino@3fchronicle.com)
Lisa Fernandez, Fox TV (Lisa.Fernandez@foxtv.com)
ACLU of Southern California (prarequest@aclusocal.org)
California News Coalition 

 

Martinez Police Of?cers? Association v. City of Martinez, et Case No.: 6 7

Attorneys for Respondents City of Martinez and Maniit Sappal, Chief of Police
John A. Abaci, Assistant City Attorney (iabaci@walterpistole.com)

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REPLY TO OPPOSITION OF INTERVENORS ACLU OF NORTHERN CALIFORNIA AND
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Iniervenors
Christine Sun, Esq., Attorney for ACLU Northern California (csungcQacluncorg)

Alan Schlosser, Esq., Attorney for ACLU Northern California (ascl?osser?laclunc.org)
Kathleen Guneratne, Esq., Attorney for ACLU Northern California 
Sean Riordan, Esq., Attorney for ACLU Northern California (sriordian@aclunc.org)
Tenaya Rodewald, Esq., Attorney for First Amendment Coalition 
James Chadwick, Esq., Attorney for First Amendment Coalition (ichadwick@sheppardmullin.com)
David Snyder, Esq., First Amendment Coalition 

Requestors of Information
ACLU of Southern California (prarequest@aclusocal.org)
Joaquin Palomino, San Francisco Chronicle 
California News Coalition 

 

 

Richmond Police O?icers?Association v. City of Richmond, et Case No.: N19-0169

Attorneys for Respondents City of Richmond and Brown, Chief of Police
Shannon L. Moore (Shannon moore@ci.richmond.ca.us)
Bruce Goodmiller (Bruce Goodmiller@ci.riclnnond.ca.us)

 

 

Intervenors
Christine Sun, Esq., Attorney for ACLU Northern California and Richard Perez 
Alan Schlosser, Esq., Attorney for ACLU Northern California
and Richard Perez (aschlosser?bacluncorg)
Kathleen Guneratne, Esq., Attorney for ACLU Northern California
and Richard Perez 
Sean Riordan, Esq., Attorney for ACLU Northern California
and Richard Perez (sriordian@aclunc.org) .
Tenaya Rodewald, Esq., Attorney for First Amendment Coalition 
James Chadwick, Esq., Attorney for First Amendment Coalition 
David Snyder, Esq., First Amendment Coalition 

 

 

 

Requesz?ors of Information
Joaquin Palomino, San Francisco Chronicle 
ACLU of Southern California (prarequest@aclusocal.ora)
Nikkia Sing 
Nate Gartell, Bay Area News Group 
Sukey Lewis, KQED (slewisgegkgedorg)
Vanessa Cordova (vncordova@berkeley.edu)
Darwin Bond Graham 
Tamara Berry, KRON 4 
Bruce Gerstman, Waterfront Intelligence 
Lisa Fernandez, OX TV (Lisa.Fernandez@foxtv.com)
Todd Simonson 
David Snyder, First Amendment Coalition with cc to


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REPLY TO OPPOSITION OF INTERVENORS ACLU OF NORTHERN CALIFORNIA AND
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Boris Bindman (BindmanLavv@g1nail.com)

Samuel Sinyangwe 
Stan Alcorn, Reveal News (salcornfalrevealnews.org)
ACLU Northern California (ABahramipour@aclunc.org)
Richard Perez (Perezrick914@yahoo.com)

California News Coalition 

 

said service was effected as indicated below:

HAND DELIVERY I placed true and correct copies of the above-referenced document(s) in a
sealed envelope, addressed to the above?named parties and personally delivered them.

FACSIMILE I caused true and correct copies of the above? referenced
document(s) to be delivered by facsimile transmission.

ELECTRONIC MAIL I caused true and correct copies of the above?referenced document(s)
to be delivered by electronic mail transmission.

OVERNIGHT DELIVERY I placed true and correct copies of above?referenced document(s)
in a sealed envelope, properly addressed to the above-named parties, with fees prepaid in a
receptacle regularly maintained by Fed EX.

MAIL I placed true and correct copies of above?referenced document(s) in a sealed envelope,
properly addressed to the above?named parties, with postage prepaid in a receptacle regularly
maintained by the United States Post Of?ce.

I declare under penalty of per jury under the laws of the State of California that the foregoing is
true and correct and was executed on February 6,19 at Pleasant Hill California. 

222%?

Michelle Soto? Vpancil (a

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REPLY TO OPPOSITION OF INTERVENORS ACLU OF NORTHERN CALIFORNIA AND
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