BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 653|
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THIRD READING
Bill No: AB 653
Author: Feuer (D)
Amended: 6/30/09 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/23/09
AYES: Corbett, Harman, Florez, Leno, Walters
SUBJECT : Peace officers: marital privilege
SOURCE : Association for Los Angeles Deputy Sheriffs
Los Angeles County Probation Officers Union
Riverside Sheriffs Association
Los Angeles Police Protective League
DIGEST : This bill provides 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.
ANALYSIS : 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
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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 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
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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.)
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 amends 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:
1.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
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or more, or subjects the department to a specific and
significant risk of civil liability.
2.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.
3.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.
Background: The Holding in Riverside County Sheriff's
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
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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 .)
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/8/09)
Association for Los Angeles Deputy Sheriffs (co-source)
Los Angeles County Probation Officers Union (co-source)
Riverside Sheriffs' Association (co-source)
Los Angeles Police Protective League (co-source)
American Federation of State, County and Municipal
Employees
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
Santa Ana Police Officers Association
ARGUMENTS IN SUPPORT : According to the author's office:
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
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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.
RJG:nl 7/8/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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