BILL ANALYSIS
AB 653
Page 1
Date of Hearing: May 12, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 653 (Feuer) - As Amended: April 30, 2009
As Proposed to be Amended in Committee
SUMMARY : Clarifies that spouses may assert marital privilege in
law enforcement administrative proceedings under specified
circumstances. Specifically, this bill :
1)Finds and declares, consistently with case law, that the
time-honored privilege not to testify against one's spouse is
grounded on the premise that compelled testimony of a spouse
would, in many cases, seriously disturb if not completely
disrupt the marital relationship. Further finds and declares,
as recognized by the California Law Revision Commission, that
society generally stands to lose more as the result of that
disruption than it stands to gain from the testimony that
would be available if the privilege did not exist.
2)Provides that a peace officer who asserts the privilege of a
spouse under Evidence Code sections 970, 971, or 980 to refuse
to testify or be called as a witness against his or her
spouse, or to disclose confidential marital communications,
shall not be subject to administrative discipline for failure
to report information to his or her supervisor or department,
except when all of the following are true:
a) The information concerns conduct of the peace officer's
spouse, who is also a peace officer employed by the same
department, that is criminal or a serious violation of
department policy punishable by a suspension of 15 days or
more, or subjects the department to a specific and
significant risk of civil liability; and,
b) The interests of justice require disclosure of the
information because, after exercising reasonable diligence,
independent evidence does not otherwise appear to be
reasonably available to proceed with an administrative
disciplinary investigation or hearing. In order to ensure
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that this decision is made at an appropriate level with due
concern for the issues at stake, the bill also requires
that the sheriff or chief of police personally approve the
discipline in writing.
3)Clarifies that this provision does not apply if the peace
officer is a percipient witness to the misconduct at issue.
4)Provides that this act applies only to administrative
disciplinary investigations and hearings, and not to other
civil or criminal proceedings.
EXISTING LAW :
1)Provides that, except as otherwise provided by statute, a
married person has a privilege not to testify against his
spouse in any proceeding. (Evidence Code Section 970.)
2)Provides that except as otherwise provided by statute, a
married person whose spouse is a party to a proceeding has a
privilege not to be called as a witness by an adverse party to
that proceeding without the prior express consent of the
spouse having the privilege unless the party calling the
spouse does so in good faith without knowledge of the marital
relationship. (Evidence Code Section 971.)
3)Provides that a married person does not have the foregoing
privilege in certain proceedings brought by or on behalf of
one spouse against the other spouse, in Juvenile Court
proceedings, specified criminal proceedings, and certain
proceedings brought against the spouse by a former spouse.
(Evidence Code Section 972.)
4)Provides that unless erroneously compelled to do so, a married
person who testifies in a proceeding to which his spouse is a
party, or who testifies against his spouse in any proceeding,
does not have the privilege in the proceeding in which such
testimony is given, and that there is no such privilege in a
civil proceeding brought or defended by a married person for
the immediate benefit of his spouse or of himself and his
spouse. (Evidence Code Section 973.)
5)Provides that, except as otherwise specified, a spouse (or his
guardian or conservator when he has a guardian or
conservator), whether or not a party, has a privilege during
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the marital relationship and afterwards to refuse to disclose,
and to prevent another from disclosing, a communication if he
claims the privilege and the communication was made in
confidence between him and the other spouse while they were
husband and wife. (Evidence Code Section 980.)
6)Provides that this privilege does not apply in the following
circumstances: if the communication was made to enable or aid
anyone to commit or plan to commit a crime or a fraud; in any
proceeding to commit either spouse or otherwise place him or
his property, under the control of another because of his
alleged mental or physical condition; in a proceeding brought
by or on behalf of either spouse to establish his competence;
in specified proceedings by or on behalf of one spouse against
the other spouse; in a proceeding between a surviving spouse
and a person who claims through the deceased spouse; in
specified criminal proceedings, including a criminal
proceeding in which the communication is offered in evidence
by a defendant who is one of the spouses between whom the
communication was made; and in a proceeding in Juvenile Court.
(Evidence Code Sections 981 to 987.)
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "Until the
recent opinion by the 4th District Court of Appeal, it had
never been contended that peace officers were not entitled to
the full protection of the traditional and longstanding
marital privilege, which protects one of society's most valued
institutions. While peace officers have a unique role and
special responsibilities to society, their marriages are also
worthy of support and protection. This bill is needed to
restore a proper balance between the respect that should be
afforded the marital relationship, and the officer's
relationship with and duties to his or her department and the
public. It would clarify that peace officers continue to
enjoy at least a qualified privilege when they are asked to
provide evidence against their spouses in administrative
investigations. An officer should not be subject to
discipline for failing to come forward with information
against his or her spouse except where there is an overriding
public interest and top management determines that discipline
is warranted."
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2)Background : According to the background submitted by the
author, "Recently in Riverside County Sheriffs Department v.
Zigman (2008) 169 Cal App 4th 763, one district court of
appeal held for the first time that the statutory marital
privilege in Evidence Code section 980 does not apply to a
peace officer who was under administrative investigation by
her department. As a result, the officer was required to
provide information regarding a marital communication and was
disciplined for not doing so. Prior to Zigman, it was
believed that such privileged communications cannot be
compelled in these administrative proceedings, just as they
cannot be compelled in court. This decision threatens to
undermine the marital relationships of law enforcement
officers."
3)Qualified Marital Privilege for Peace Officers : This bill
recognizes a qualified marital privilege for peace officers in
administrative proceedings. In lieu of the absolute marital
privilege that otherwise applies to all other parties in
covered proceedings, this bill creates a more limited
privilege regarding administrative proceedings involving
failure to report information to a supervisor or department.
This qualified privilege may be surmounted under the following
circumstances: (a) the information concerns conduct of the
peace officer's spouse, who is also a peace officer employed
by the same department, that is criminal or a serious
violation of department policy punishable by a suspension of
15 days or more, or subjects the department to a specific and
significant risk of civil liability; and (b) the interests of
justice require disclosure of the information because, after
exercising reasonable diligence, independent evidence does not
otherwise appear to be reasonably available to proceed with an
administrative disciplinary investigation or hearing. In
order to ensure that this decision is made at an appropriate
level with due concern for the issues at the stake, this bill
also requires that the sheriff or chief of police personally
approve the discipline despite the assertion of the marital
privilege. This bill expressly provides that it applies only
to administrative disciplinary investigations and hearings,
and not to other civil or criminal proceedings. This bill is
further limited in that it provides that the privilege does
not apply if the peace officer is a percipient witness to the
misconduct at issue.
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4)Abrogation of Riverside County Sheriff's Dept. v. Zigman : In
Riverside County Sheriff's Dept. v. Zigman (2008) 169 Cal.
App. 4th 763, the 4th District Court of Appeal concluded that
marital privilege did not apply in police administrative
hearings. In Zigman, a deputy was disciplined for failing to
inform her supervisors of her husband's admission that he used
and stole methamphetamine from persons he arrested. The
initial arbitrator concluded that the communication between
the deputy and her husband was protected by the marital
privilege. A later court held that the marital privilege set
forth in Evidence Code Section 980 did not apply in law
enforcement administrative investigations and hearings. The
court noted that even the constitutional, fundamental
privilege against self-incrimination did not apply in such
investigations. The statutory marital communications
privilege did not apply in law enforcement administrative
investigations because they were not proceedings within the
contemplation of "proceedings" as defined in the privileges
section of the evidence code, or in the "applicability"
provisions. Although an arbitration hearing that served as an
administrative appeal was such a proceeding, the court
concluded that the same rules of privilege had to be used in
the administrative appeal as in the investigation so as to
make the administrative appeal meaningful and to give effect
to specified provisions of the Peace Officer Bill of Rights.
This bill abrogates the ruling in Zigman and permits qualified
marital privilege for peace officers in administrative
proceedings.
5)Should The Principles of this Bill Apply to Other
Administrative Proceedings : This bill codifies the right of
peace officers to qualified marital privilege in
administrative proceedings. The addition of this right to the
Penal Code begs the question of whether the same right should
apply to other government workers subject to administrative
discipline. For instance, should teachers have the same
codified right to qualified marital privilege as peace
officers in administrative hearings?
6)Argument in Support : The Association for Los Angeles Deputy
Sheriffs states, "AB 653 abrogates, in part, the Zigman
decision, and creates a 'qualified marital privilege.' In
lieu of an absolute marital privilege in administrative
proceedings, AB 653 sets forth several reasonable conditions
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that must be addressed before an officer or an officer's
spouse can be interrogated regarding marital confidential
communications.
"The marital privilege protects one of society's most valued
institutions. This privilege has been utilized in other
circumstances where it has been balanced against even horrific
conduct, where society had an interest in seeking the truth
regarding an event, but privilege prevented revelation of the
marital communication.
"California's peace officers should not be unfairly penalized
simply because they choose to marry a fellow peace officer.
AB 653 balances against unwarranted abuses or unreasonable
intrusion by management."
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
Association for Los Angeles Deputy Sheriffs
California Fraternal Order of Police
Long Beach Police Officers Association
Los Angeles County Probation Officers' Union
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs' Association
Santa Ana Police Officers Association
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744