BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
6
5
3
AB 653 (Feuer)
As Amended June 30, 2009
Hearing date: July 7, 2009
Government Code
SM:mc
MARITAL PRIVILEGE IN POLICE
DISCIPLINARY INVESTIGATIONS AND ADMINISTRATIVE HEARINGS
HISTORY
Source: Association for Los Angeles Deputy Sheriffs; Los
Angeles County Probation Officers
Union; Riverside Sheriffs' Association; Los Angeles Police
Protective League
Prior Legislation: SB 2215 (Lockyer) - Chap. 786, Stats. 1998
AB 1436 (Cardoza), Chap. 148, Stats. 1997
SB 282 (Johannessen) - vetoed, 1996
AB 3999 (1990) - held in Assembly Public Safety
Committee
Support: AFSCME; California Fraternal Order of Police;
California Narcotics Officers Association; California
Peace Officers Association; California Police Chiefs
Association; Long Beach Police Officers Association;
Los Angeles County Professional Peace Officers
Association; Peace Officers Research Association of
California (PORAC); Santa Ana Police Officers
Association
Opposition:None known
(More)
AB 653 (Feuer)
PageB
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD A PEACE OFFICER WHO ASSERTS EVIDENTIARY MARITAL PRIVILEGES IN
AN ADMINISTRATIVE OR DISCIPLINARY INVESTIGATION OR HEARING NOT BE
SUBJECT TO ADMINISTRATIVE DISCIPLINE FOR FAILURE TO REPORT
INFORMATION TO HIS OR HER SUPERVISOR OR DEPARTMENT, EXCEPT AS
SPECIFIED?
PURPOSE
The purpose of this bill is to provide that a peace officer who
asserts evidentiary marital privileges in an administrative or
disciplinary investigation or hearing shall not be subject to
administrative discipline for failure to report information to
his or her supervisor or department, except as specified.
Existing law generally governs law enforcement agencies
conducting internal affairs investigations of peace officers.
(Gov. Code . 3300-3313.) Existing law also provides for the
protection of peace officers' procedural rights in these
investigations. (Gov. Code . 3304.)
Existing law provides that, except as otherwise provided by
statute, a married person has a privilege not to testify against
his spouse in any proceeding. (Evid. Code . 970.)
Existing law 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. (Evid. Code . 971.)
Existing law provides that a married person does not have the
foregoing privilege in certain proceedings brought by or on
(More)
AB 653 (Feuer)
PageC
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.
(Evid. Code . 972.)
Existing law 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. (Evid. Code . 973.)
Existing law 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 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. (Evid. Code . 980.)
Existing law provides that this privilege does not apply in the
following circumstances: (1) if the communication was made to
enable or aid anyone to commit or plan to commit a crime or a
fraud; (2) 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; (3)
in a proceeding brought by or on behalf of either spouse to
establish his competence; (4) in specified proceedings by or on
behalf of one spouse against the other spouse; (5) in a
proceeding between a surviving spouse and a person who claims
through the deceased spouse; or (6) 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. (Evid. Code . 981-987.)
(More)
AB 653 (Feuer)
PageD
This bill makes the following uncodified findings: "The
Legislature finds and declares 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 (People v. Sinohui (2002) 28 Cal.4th 205). As the
California Law Revision Commission has commented with respect to
Section 970 of the Evidence Code, 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."
This bill contains the following uncodified legislative intent
language: "It is the intent of the Legislature to overrule
Riverside County Sheriff's Dept. v. Zigman (2008) 169
Cal.App.4th 763 to the extent that it is inconsistent with this
act."
This bill would amend the Government Code to state that a peace
officer who asserts the privilege of a spouse under Section 970,
971, or 980 of the Evidence Code 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:
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.
The interests of justice require disclosure of the
information because, after exercising reasonable diligence,
(More)
AB 653 (Feuer)
PageE
independent evidence does not otherwise appear to be
reasonably available to proceed with an administrative
disciplinary investigation or hearing.
The sheriff or chief of police personally approves the
discipline in writing despite the assertion of the marital
privilege.
This bill states that its provisions do not apply if the peace
officer is a percipient witness to the misconduct at issue.
This bill states that its provisions apply only to
administrative disciplinary investigations and hearings, not to
other civil or criminal proceedings.
This bill states that its provisions shall impair any right or
privilege pursuant to a memorandum of understanding between a
department and a certified bargaining unit representing peace
officers, or limit their ability to negotiate and agree to a
higher standard of rights or privileges.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
(More)
AB 653 (Feuer)
PageF
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
(More)
AB 653 (Feuer)
PageG
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
(More)
AB 653 (Feuer)
PageH
1. Need for This Bill
According to 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. Prior to Zigman, it was
believed that such privileged communications were not
admissible in these administrative proceedings. The author
contends that the traditional marital privilege protects one
of society's most valued institutions, and that this bill is
needed to restore a proper balance between the respect to be
afforded the marital relationship and the officer's
relationship with and duties to his or her department, the
employing state or local government agency, and the general
public
Until the Zigman opinion, 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.
2. Background: The Holding in Riverside County Sheriff's
(More)
AB 653 (Feuer)
PageI
Department v. Zigman
In Riverside County Sheriff's Department v. Zigman, (2008) 169
Cal.App.4th, the Court of Appeal, Fourth Appellate District held
that the marital evidentiary privilege set forth in Evidence
Code Section 980 did not apply in law enforcement administrative
investigations and 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 County Sheriff's Department began
investigating the deputy's husband after they received an
anonymous tip, and he was eventually caught in a sting operation
stealing six grams of methamphetamine from what he thought was a
crime scene. The initial arbitrator concluded that the
communication between the deputy and her husband was protected
by the marital privilege. However, the court determined that
the marital communications privilege did not apply in law
enforcement administrative investigations because they were not
proceedings in which testimony can be compelled to be given by a
subpoena. (Id. at 769-771.) Although the court found that an
administrative appeal is 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
appeals process meaningful and effectuate the purpose of the
statutory protection of peace officers' procedural rights.
(Id.)
3. Balancing The Public Interest In Evidentiary Marital
Privileges and Effective Internal Investigations of Peace
Officers
This bill was heard in the Senate Judiciary Committee on June
23, 2009, where it passed on consent. Regarding the role of
evidentiary privileges and the effects of this bill, the
analysis of the Senate Judiciary Committee states the following:
Unless otherwise provided by statute, no person has a
privilege to refuse to be a witness, refuse to
disclose any matter or refuse to produce any writing
or object, or refuse that another person be a witness
(More)
AB 653 (Feuer)
PageJ
or disclose evidence. (Evid. Code Sec. 911.) An
evidentiary privilege permits an otherwise competent
witness to refuse to testify and/or prevent another
from testifying. Privileges are policy exclusions,
unrelated to the reliability of the information
involved, which are granted because it is considered
more important to keep that information confidential
than it is to require disclosure. (Evid. Code Sec.
910, Comment.) Thus, an applicable privilege protects
against the compelled disclosure of information no
matter how relevant it is to the issues. Because they
tend to suppress otherwise relevant evidence, the
statutory privileges are strictly construed. (Evid.
Code Sec. 911, Comment; Sullivan v. Sup. Ct.
(Spingola) 29 Cal.App.3d 64 (1972).) Except as
otherwise provided by statute, the statutory
privileges may be asserted in all proceedings in which
testimony may be compelled, such as investigations,
inquiries, and administrative proceedings, as well as
trials. (Evid. Code Secs. 901, 910; Sec. 910,
Comment; Southern California Gas Co. v. California
Pub. Util. Comm'n (1990) 50 Cal.App.3d 31, 38.)
Under existing law, a married individual has a
privilege not to testify against his or her spouse in
any proceeding, and a privilege not to be called as a
witness in any proceeding to which his spouse is a
party (Evid. Code Secs. 970-971). In addition, a
spouse has a privilege during and after the marital
relationship to refuse to disclose, and to prevent
another from disclosing, a confidential marital
communication made between spouses when the marriage
was still intact. (Evid. Code Sec. 980.) The
rationale for these privileges is that "such testimony
would seriously disturb or disrupt the marital
relationship. Society stands to lose more from such
disruption than it stands to gain from the testimony
which would be available if the privilege did not
exist." (Evid. Code Sec. 970, Comment.) In addition,
"[f]ree and open communication between spouses would
(More)
AB 653 (Feuer)
PageK
be unduly inhibited if one of the spouses could be
compelled to testify as to the nature of such
[confidential] communications after the termination of
the marriage." (Evid. Code Sec. 980, Comment.)
The Public Safety Officers Procedural Bill of Rights
Act (Act) generally governs law enforcement agencies
conducting internal affairs investigations of peace
officers, and requires that agencies afford minimum
procedural rights to their peace officer employees.
(Gov. Code Secs. 3300-3313.) The investigation of
alleged police misconduct is important, not only to
public safety, but also to promote public confidence
in the integrity of the law enforcement system. (See
Pasadena Police Officers Assn v. City of Pasadena
(1990) 51 Cal.3d 564, 571-572 ["Historically, peace
officers have been held to a higher standard than
other public employees, in part because they alone are
the 'guardians of peace and security of the community,
and the efficiency of our whole system, designed for
the purpose of maintaining law and order, depends upon
the extent to which such officers perform their duties
and are faithful to the trust reposed in them.' To
maintain the public's confidence in its police force,
a law enforcement agency must promptly, thoroughly,
and fairly investigate allegations of officer
misconduct; if warranted, it must institute
disciplinary proceedings." (citations omitted).)
As previously discussed, the Zigman court held that
statutory marital communications privilege does not
apply in law enforcement administrative proceedings.
This bill would abrogate the holding in Zigman and
enable peace officers to avail themselves of the
marital privilege without fear of discipline during
administrative proceedings and investigations, except
in those circumstances which are compelling enough to
trump the public policy underlying the privilege.
Specifically, a peace officer who asserts the
(More)
AB 653 (Feuer)
PageL
privilege of a spouse 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. However, the qualified privilege would
not be available 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 that
this disciplinary decision is made at an appropriate
level, this bill would also require that the sheriff
or chief of police personally approve the discipline
despite the assertion of the marital privilege.
The qualified marital privilege would thus not be
available in serious circumstances where the peace
officer's testimony is necessary to progress with an
investigation or hearing. This would ensure that
investigations into serious allegations of peace
officers are not inhibited, while generally protecting
marital communications.
(More)
It is important to note that the provisions of this
bill would only apply to administrative disciplinary
investigations and hearings, and not to other civil or
criminal proceedings. Presumably, in those
proceedings where a person's testimony could be
compelled with a subpoena the provisions of the
general marital privileges would apply. Further, this
bill would provide that the privilege does not apply
if the peace officer is a percipient witness to the
misconduct at issue. Thus, a peace officer who is an
eyewitness to the misconduct being investigated could
not escape discipline by asserting marital privilege
and refusing to cooperate with the investigation.
4. Evidentiary "Marital Privileges" Apply Equally to Domestic
Partners
On November 4, 2008, California voters enacted Proposition 8,
amending the California Constitution to provide that "Only
marriage between a man and a woman is valid or recognized in
California." (Cal. Const., Art. I, sec. 7.5.) Nonetheless, the
"marital privileges" that this bill would confer on peace
officers in disciplinary investigations and hearings would apply
equally to peace officers who are registered domestic partners.
(Family Code 297.5.)<3>
SHOULD THE MARITAL PRIVILEGES APPLY TO PEACE OFFICERS IN
DISCIPLINARY INVESTIGATIONS AND HEARINGS?
5. Argument in Support
---------------------------
<3> Family Code 297.5(a) provides: "Registered domestic
partners shall have the same rights, protections, and benefits,
and shall be subject to the same responsibilities, obligations,
and duties under law, whether they derive from statutes,
administrative regulations, court rules, government policies,
common law, or any other provisions or sources of law, as are
granted to and imposed upon spouses."
(More)
AB 653 (Feuer)
PageN
AB 653 would restore the right of marital privilege
for peace officers in administrative disciplinary
hearings. This privilege protects one of society's
most valued institutions and this bill ensures that
communications between spouses are not admitted into
or made part of a peace officer's disciplinary
proceedings. The presumption may be rebutted if the
disclosure is necessary because the officer's conduct
was a violation of department policy and was either
criminal or a violation of the state's
anti-discrimination or harassment laws. It may also
be rebutted if failure to disclose the privileged
communication would constitute a substantial risk of
harm to the public or an individual, or it is in the
interest of justice to require the disclosure.
***************