When plaintiffs attempt to take the depositions of local elected and appointed officials, defense counsel are often able to prevent the discovery from going forward by invoking the legislative privilege (also known as the deliberative process privilege). But in practice, preventing such discovery is sometimes a struggle because the legislative/deliberative process privilege is not recognized in the Evidence Code.
Two new cases, however, have affirmed the existence of the legislative/deliberative process privilege: San Joaquin Local Agency Formation Commission v. Superior Court of San Joaquin County (South San Joaquin Irrigation District), (— Cal.Rptr.3d —, 2008 WL 1801200, Cal.App. 3 Dist., April 22, 2008 and Sutter’s Place v. Superior Court of Santa Clara County (City of San Jose), (— Cal.Rptr.3d —, 2008 WL 715254, Cal. App. 6 Dist., March 18, 2008).
San Joaquin Local Agency Formation Commission v. Superior Court of San Joaquin County (South San Joaquin Irrigation District)
Facts
The South San Joaquin Irrigation District (“District”)applied to the San Joaquin Local Agency Formation Commission (“LAFCO”) for permission to provide electric utility service within the District’s service territory.
The San Joaquin LAFCO denied the application. In arriving at this decision, several LAFCO Commissioners stated that they needed more information and expressed concerns about the District’s use of its eminent domain powers.
The District filed a mandamus lawsuit against LAFCO. When the District noticed the depositions of three LAFCO Commissioners, LAFCO moved for a protective order. The trial court nevertheless allowed the depositions to go forward.
Decision
The Court of Appeal overturned the trial court’s discovery order. The court held that in a challenge to a LAFCO administrative decision, LAFCO Commissioners may not be deposed to discover the evidence that they relied on. The court explained that evidence outside of the administrative record ("extra record evidence") is generally not admissible to mandamus challenges to administrative agency decisions. To allow discovery of the thought processes or motives of local elected and appointed officials would infringe upon the constitutional doctrine of separation of powers, the court cautioned.
The court noted exceptions to this rule. Extra record evidence is admissible when: (1) the evidence existed before the agency made its decision and (2) it was not possible with reasonable diligence to present this evidence to the agency before the decision was made so that it could be considered and included in the administrative record. Further, extra record evidence can be admissible under unusual circumstances or for very limited purposes. These exceptions, however, did not apply here, where the District was merely attempting to contradict the evidence relied on by LAFCO and to question the wisdom of its decision.
The court also stressed that the discovery at issue was prohibited by the deliberative process privilege. Under this privilege, local elected and appointed officials enjoy a qualified, limited privilege as to not only the mental processes by which they reached a decision but also related conversations, discussions, and deliberations. The key inquiry is whether the disclosure of materials would expose the agency’s decision-making process in such a way as to discourage candid discussion within the agency, thereby undermining its effectiveness. If so, such evidence is not discoverable, the court concluded.
Sutter’s Place v. Superior Court of Santa Clara County (City of San Jose)
In Sutter’s Place v. Superior Court of Santa Clara County (City of San Jose), a California Court of Appeal affirmed the continuing existence of the legislative/deliberative process privilege under Proposition 59, but gave it a new name and announced that it is not an evidentiary privilege so much as a principle mandated by the state and federal constitutions.
Facts
Sutter’s Place operated a card room in the City of San Jose. When the City adopted an ordinance that prohibited card rooms from operating between 2:00 a.m. and 6:00 a.m., as well as prohibiting backline betting, Sutter’s Place filed suit.
As part of its litigation strategy, Sutter’s Place filed a motion to compel the discovery of documents reflecting on the City Council’s motives for adopting the ordinance. The trial court refused to issue the order.
Decision
The Court of Appeal upheld the trial court’s refusal to order the discovery. The court explained that under the constitutional separation of powers doctrine, each branch of government should remain independent of the other branches. In order to maintain the separation of powers, elected officials enjoy a privilege which prevents discovery into their mental processes or their reasons for enacting an ordinance.
The court added that this so-called evidentiary privilege is more of a principle that prevents the judicial branch from invading the constitutional prerogatives of elected officials. Hence, the legislative/deliberative process privilege should be referred to as the mental processes principle, according to the court.
The Court of Appeal further held that the mental processes principle survived Proposition 59. Proposition 59 merely constitutionalized the Public Records Act. Proposition 59 did not change existing law, nor is it hostile to the mental process privilege, in the court’s view.
Finally, the court held that records pertaining to the mental processes of legislators are exempt from disclosure under the Public Records Act. Pointing to Government Code § 6254(k), the court observed that records whose disclosure is exempted or prohibited under state or federal law are not disclosable under the Public Records Act. Given that the mental processes principle is rooted in the separation-of-powers doctrine, Section 6254(k) exempts public records to which the principle is applicable, the court concluded.