BILL ANALYSIS
AB 653
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GOVERNOR'S VETO
AB 653 (Feuer)
As Amended June 30, 2009
2/3 vote
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|ASSEMBLY: |76-0 |(May 28, 2009) |SENATE: |36-0 |(July 16, |
| | | | | |2009) |
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|ASSEMBLY: |77-0 |(August 17, | | | |
| | |2009) | | | |
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Original Committee Reference: JUD.
SUMMARY : Reinforces the evidentiary privilege of spouses in the
context of law enforcement employment. 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
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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 stake, the bill also requires that
the sheriff or chief of police personally approve the
discipline. Clarifies that this provision does not apply if
the peace officer is a percipient witness to the misconduct at
issue.
3)Provides that this act applies only to administrative
disciplinary investigations and hearings, and not to other
civil or criminal proceedings.
The Senate amendments make only technical changes, revising the
codification in order to place substantive provisions in the
Government Code.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
COMMENTS : The author explains the need for the bill as follows:
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
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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.
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:
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 or more,
or subjects the department to a specific and significant risk of
civil liability; and, 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. In order
to ensure that this decision is made at an appropriate level
with due concern for the issues at the stake, the bill also
requires that the sheriff or chief of police personally approve
the discipline despite the assertion of the marital privilege.
The bill expressly provides that it applies only to
administrative disciplinary investigations and hearings, and not
to other civil or criminal proceedings. The 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.
Co-sponsors Association for Los Angeles Deputy Sheriffs, Los
Angeles Probation Officers' Union, and Riverside Sheriffs'
Association, among others, write in support of the bill:
AB 653 addresses the "married cop penalty."
Presently in Riverside County Sheriffs' Department v
Zigman the 4th District Court of Appeal held that
the marital privilege found in Evidence Code Section
980 did not apply to a peace officer who was under
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investigation and required to provide information
regarding a marital communication, or to a peace
officer whose spouse was under investigation and was
required to reveal a marital communication. In lieu
of an absolute marital privilege in administrative
disciplinary proceedings, AB 653 sets forth several
reasonable conditions 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 the 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.
GOVERNOR'S VETO MESSAGE :
"This measure would overturn a recent court decision and extend
the marital privilege to administrative, investigatory hearings
conducted by law enforcement agencies. While the sanctity of
marriage should be protected, peace officers must also honor the
relationships they have with the agencies and communities in
which they work. If the marital privilege doctrine were
extended to hide corruption between peace officer spouses, the
relationship between spouses may benefit. However, the law
enforcement agency and its reputation within the community would
suffer irreparable harm. Although this measure is narrowly
drawn, society's interest in protecting marital communications
should not extend beyond the courthouse and into peace officer
disciplinary proceedings."
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
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FN: 0003289