Stanford Law School - Robert Crown Law Library

Filed 2/27/03

IN THE SUPREME COURT OF CALIFORNIA

MAURICE ALFORD et al.,
Petitioners,
S098233
v.
) Ct.App.
4/1
D036869
THE SUPERIOR COURT OF
SAN DIEGO COUNTY,
San
Diego
County
Respondent;
Super. Ct. No. SCD153999
THE PEOPLE et al.,
Real Parties in Interest.

Petitioners Maurice Alford and Donny Love were arrested on drug charges,
the specifics of which are not pertinent to this appeal. Because petitioners’
narrative of events leading to their arrest differed from that of the arresting
officers, they sought to challenge the officers’ credibility. Petitioners accordingly
moved, in superior court, for Pitchess discovery of past complaints made to the
San Diego Police Department regarding any incidents of dishonesty, excessive
force, unnecessary violence, racist remarks, or similar misconduct on the part of
the arresting officers. (See generally Pitchess v. Superior Court (1974) 11 Cal.3d
1

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531; Evid. Code, §§ 1043, 1045.)1 The superior court initially granted the
requested discovery as to two prior incidents but, after reconsidering its ability to
fashion an appropriate protective order, reversed itself and denied the motion. On
petitioners’ application to the Court of Appeal for a writ of mandate, that court
issued a writ directing the superior court to fashion an order granting such
disclosure on the condition that petitioners’ attorneys not disseminate the
information so disclosed beyond the criminal proceeding, and permitting the
prosecuting attorney to be heard on the motion and to receive the information so
disclosed.
Contending the conditions were unauthorized by section 1045, subdivision
(e) (hereafter section 1045(e)), petitioner Alford sought review in this court. We
granted review, limited to the questions whether the protective order required by
section 1045(e) must restrict use of Pitchess information2 to the proceeding in
which disclosure is sought, and whether the prosecutor has standing to be heard on
the Pitchess motion and to obtain information disclosed to the defense pursuant to
such motion.
For the reasons that follow, we conclude the decision of the Court of
Appeal must be reversed.

1
Unless otherwise noted, all further statutory references are to the Evidence
Code.
2
I.e., the information disclosed pursuant to a Pitchess motion. The parties
have not briefed, and we express no views concerning, the treatment of
information developed as a result of the receipt of information disclosed pursuant
to a Pitchess motion.
2

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DISCUSSION
A. Statutory Background
Recently, in People v. Mooc (2001) 26 Cal.4th 1216 and City of Los
Angeles v. Superior Court (2002) 29 Cal.4th 1, we have had occasion to review
the background of the relevant statutory provisions; we do so again here in
furtherance of our analysis. As this court stated in City of Santa Cruz v. Municipal
Court (1989) 49 Cal.3d 74:
“In 1978, the California Legislature codified the privileges and procedures
surrounding what had come to be known as ‘Pitchess motions’ (after our decision
in Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d
305])[3] through the enactment of Penal Code sections 832.7 and 832.8 and
Evidence Code sections 1043 through 1045. The Penal Code provisions define
‘personnel records’ (Pen. Code, § 832.8) and provide that such records are
‘confidential’ and subject to discovery only pursuant to the procedures set forth in
the Evidence Code. (Pen. Code, § 832.7.) Evidence Code sections 1043 and 1045
set out the procedures for discovery in detail. As here pertinent, section 1043,
subdivision (a) requires a written motion and notice to the governmental agency
which has custody of the records sought, and subdivision (b) provides that such
motion shall include, inter alia, ‘(2) A description of the type of records or
information sought; and [¶] (3) Affidavits showing good cause for the discovery or
disclosure sought, setting forth the materiality thereof to the subject matter
involved in the pending litigation and stating upon reasonable belief that such

3
In Pitchess v. Superior Court, supra, 11 Cal.3d 531, we held that a criminal
defendant has a limited right to discovery of peace officer personnel records in
order to ensure “a fair trial and an intelligent defense in light of all relevant and
reasonably accessible information.” (Id. at p. 535.)
3

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governmental agency identified has such records or information from such
records.’
“A finding of ‘good cause’ under section 1043, subdivision (b) is only the
first hurdle in the discovery process. Once good cause for discovery has been
established, section 1045 provides that the court shall then examine the
information ‘in chambers’ in conformity with section 915 (i.e., out of the presence
of all persons except the person authorized to claim the privilege and such other
persons as he or she is willing to have present), and shall exclude from disclosure
several enumerated categories of information, including: (1) complaints more
than five years old, (2) the ‘conclusions of any officer investigating a complaint
. . .’ and (3) facts which are ‘so remote as to make disclosure of little or no
practical benefit.’ (§ 1045, subd. (b).)
“In addition to the exclusion of specific categories of information from
disclosure, section 1045 establishes general criteria to guide the court’s
determination and insure that the privacy interests of the officers subject to the
motion are protected. Where the issue in litigation concerns the policies or pattern
of conduct of the employing agency, the statute requires the court to ‘consider
whether the information sought may be obtained from other records . . . which
would not necessitate the disclosure of individual personnel records.’ (§ 1045,
subd. (c).) The law further provides that the court may, in its discretion, ‘make
any order which justice requires to protect the officer or agency from unnecessary
annoyance, embarrassment or oppression.’ (§ 1045, subd. (d), italics added.)
And, finally, the statute mandates that in any case where disclosure is permitted,
the court ‘shall . . . order that the records disclosed or discovered shall not be used
for any purpose other than a court proceeding pursuant to applicable law.’
(§ 1045, subd. (e), italics added.)
4

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“As statutory schemes go the foregoing is a veritable model of clarity and
balance. Section 1043 clearly requires a showing of ‘good cause’ for discovery in
two general categories: (1) the ‘materiality’ of the information or records sought
to the ‘subject matter involved in the pending litigation,’ and (2) a ‘reasonable
belief’ that the governmental agency has the ‘type’ of information or records
sought to be disclosed. (§ 1043, subd. (b).)
“The relatively low threshold for discovery embodied in section 1043 is
offset, in turn, by section 1045’s protective provisions which: (1) explicitly
‘exclude from disclosure’ certain enumerated categories of information (§ 1045,
subd. (b)); (2) establish a procedure for in camera inspection by the court prior to
any disclosure (§ 1045, subd. (b)); and (3) issue a forceful directive to the courts to
consider the privacy interests of the officers whose records are sought and take
whatever steps ‘justice requires’ to protect the officers from ‘unnecessary
annoyance, embarrassment or oppression.’ (§ 1045, subds. (c), (d) & (e).)
“The statutory scheme thus carefully balances two directly conflicting
interests: the peace officer’s just claim to confidentiality, and the criminal
defendant’s equally compelling interest in all information pertinent to his defense.
The relatively relaxed standards for a showing of good cause under section 1043,
subdivision (b)—‘materiality’ to the subject matter of the pending litigation and a
‘reasonable belief’ that the agency has the type of information sought—insure the
production for inspection of all potentially relevant documents. The in camera
review procedure and disclosure guidelines set forth in section 1045 guarantee, in
turn, a balancing of the officer’s privacy interests against the defendant’s need for
disclosure. As a further safeguard, moreover, the courts have generally refused to
disclose verbatim reports or records of any kind from peace officer personnel files,
ordering instead . . . that the agency reveal only the name, address and phone
number of any prior complainants and witnesses and the dates of the incidents in
5

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question. [Citations.]” (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d
at pp. 81-84, fns. omitted.)
A motion for discovery of peace officer personnel records is addressed to
the sound discretion of the trial court, reviewable for abuse. (Pitchess v. Superior
Court, supra, 11 Cal.3d at p. 535; People v. Gill (1997) 60 Cal.App.4th 743, 749.)
With these principles in mind, we turn to the specific issues presented in
this case.
B. Scope of Mandatory Protective Order Under Section 1045(e)
Section 1045(e) provides: “The court shall, in any case or proceeding
permitting the disclosure or discovery of any peace or custodial officer records
requested pursuant to Section 1043, order that the records disclosed or discovered
may not be used for any purpose other than a court proceeding pursuant to
applicable law.” The parties disagree about the meaning of the phrase, “a court
proceeding pursuant to applicable law.” Petitioner contends it refers to any court
proceeding, whether or not in the case in which disclosure was sought, provided
such use complies with applicable provisions of the law of evidence. The city
attorney, on behalf of the custodian of records, argues that, in the context of the
Pitchess scheme of which it is a part, the phrase refers to the case for which the
information was sought.
Our role in construing a statute is to ascertain the intent of the Legislature
so as to effectuate the purpose of the law. (People v. Jefferson (1999) 21 Cal.4th
86, 94.) Because the statutory language is generally the most reliable indicator of
that intent, we look first at the words themselves, giving them their usual and
ordinary meaning. (People v. Lawrence (2000) 24 Cal.4th 219, 230.) We do not,
however, consider the statutory language in isolation, but rather examine the entire
substance of the statute in order to determine the scope and purpose of the
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provision, construing its words in context and harmonizing its various parts.
(People v. Acosta (2002) 29 Cal.4th 105, 112.)
Petitioner contends the legislative history of section 1045(e) strongly
supports his interpretation. He points out that twice, in 1978 and again in 1982,
the Legislature considered and rejected an amendment to section 1045 that would
have restricted use of the information disclosed on a Pitchess motion to the
particular case in which the disclosure was made. As introduced on January 27,
1978, Senate Bill No. 1436 (1977-1978 Reg. Sess.), the original legislation
governing release of information from peace officer personnel records, contained
no provision for a protective order. Then, on August 7, 1978, the bill was
amended to include the following language: “(g) Whenever a court orders
disclosure of records or information obtained therefrom pursuant to this section,
use of such records or information shall be limited to the litigation in aid of which
access to the records or information was sought, and any records obtained
pursuant to such an order of disclosure or any copies thereof shall be returned to
the department or governmental agency upon conclusion of that litigation.”
(Assem. Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978,
italics omitted.) A subsequent Assembly amendment to Senate Bill No. 1436, on
August 30, 1978, however, deleted that language and replaced it with that
currently in section 1045, subdivision (d): “Upon motion seasonably made by the
governmental agency which has custody or control of the records to be examined
or by the officer whose records are sought, and upon good cause showing the
necessity thereof, the court may make any order which justice requires to protect
the officer or agency from unnecessary annoyance, embarrassment or oppression.”
Some four years later, the Legislature added section 1045(e), the provision
for mandatory protective orders at issue here. As introduced on March 30, 1981,
Senate Bill No. 1065 (1981-1982 Reg. Sess.) contained language limiting use of
7

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disclosed records or information therefrom to the proceeding identified in the
motion: “(e) The court shall, in any case or proceeding permitting the disclosure
or discovery of any peace officer records requested pursuant to Section 1043,
order that the records disclosed or discovered may not be used for any purpose or
in any proceeding other than those identified in the motion pursuant to Section
1043.” The Assembly subsequently amended the bill to remove the limitation on
use of disclosed material to the proceeding identified in the motion, replacing it
with the language currently found in section 1045(e). (Assem. Amend. to Sen.
Bill No. 1065 (1981-1982 Reg. Sess.) Aug. 2, 1982.)4
Petitioner urges that, having twice considered and rejected the very
limitation for which the city attorney here advocates, the Legislature evidently did
not intend that section 1045(e) be interpreted to require a trial court ordering
disclosure of Pitchess information to order that such information be used only in
the proceedings identified in the motion.
We do not find the import of the cited legislative history altogether clear.
Examining as a whole the purpose of the 1978 legislation, we find it was intended
to respond to officer complaints that Pitchess discovery was being ordered for
unfounded, anonymous, or very old citizen complaints. Peace officer personnel
records also had not been specifically designated as privileged. (See Enrolled Bill
Rep. on Sen. Bill No. 1436 (1977-1978 Reg. Sess.).) The legislation addressed
these problems by establishing the requirement of a specific showing of good
cause for disclosure and recognizing certain exclusions from disclosure. (See
§§ 1043, subd. (b), 1045, subd. (b).) The addition of subdivision (d) to section

4
Petitioner requests that this court take judicial notice of the legislative
history of Senate Bill No. 1436 (1977-1978 Reg. Sess.) and Senate Bill No. 1065
(1981-1982 Reg. Sess.). We grant the request. (§§ 452, subds. (a), (c), 459.)
8

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1045, authorizing protective orders “[u]pon motion seasonably made” and “upon
good cause showing the necessity thereof,” may have been thought to provide
adequate protection against abuses of Pitchess discovery.
Such was not the case. The 1982 legislation responded to the concern that
disclosure of information from peace officer personnel records would be used in
litigation against officers and the agencies employing them. (See Enrolled Bill
Rep. on Sen. Bill No. 1065 (1981-1982 Reg. Sess.).) Notably, the bill as
introduced included severe restrictions on any disclosure, proposing to limit the
discovery authorized in sections 1043 and 1045 specifically to cases involving
resisting arrest, assault, or battery, where claims of officer violence might be
expected to be relevant. (Sen. Bill No. 1065 (1981-1982 Reg. Sess.) as introduced
Mar. 30, 1981, § 1.) Evidently deemed too narrow, this provision was later
revised to limit discovery to any case in which a defendant might reasonably assert
self-defense and excessive force. (Sen. Amend. to Sen. Bill No. 1065 (1981-1982
Reg. Sess.) June 14, 1981.) When, finally, the Legislature gave up attempting to
enumerate specific types of cases in which Pitchess discovery could be ordered, it
revised section 1045(e) to provide that use of any records disclosed be limited to
“a court proceeding pursuant to applicable law” rather than prohibiting their use as
the amending legislation originally would have done “in any proceeding other than
those identified in the motion pursuant to Section 1043” (Assem. Amend. to Sen.
Bill No. 1065 (1981-1982 Reg. Sess.) Aug. 2, 1982), i.e., the section where the
proposed narrow restrictions had been specified. The language modification, then,
did not necessarily mean that disclosure was not limited to the case in which it was
being sought; rather, we surmise it meant the Legislature was not defining
substantively what kind of case that might be.
The Court of Appeal in this case reasoned that because section 1045(e) is
part of an overall statutory scheme that carefully balances peace officers’ privacy
9

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interests in their personnel records against defendants’ rights of access to
information relevant to their defense, and because disclosure of information
contained in such records is permitted only on a showing of materiality to a
particular case, to interpret the statute as allowing a defendant to share such
information with other defendants would defeat the purpose of the balancing
process. That court also believed the phrase “applicable law” in section 1045(e) in
fact referred to section 1043 and thus signified the Legislature’s intent to restrict
use of the disclosed information to the proceeding in which it was sought. We
agree; like the Court of Appeal we read “applicable law” in this context as
referring to the statutory Pitchess scheme. Contrary to petitioner’s argument, we
believe the phrase must mean more than mere compliance with the Evidence
Code, as the admission of any evidence in a court proceeding must comply with
that code. Thus, petitioner’s construction tends to reduce the phrase to surplusage,
in contravention of the canons of construction. (Delaney v. Superior Court (1990)
50 Cal.3d 785, 798-799.)
As the Court of Appeal reasoned, its interpretation of section 1045(e)
harmonizes the entire statutory scheme and retains its effectiveness by furthering
the legitimate interests of both the defendant and the peace officer. (See People v.
Pieters (1991) 52 Cal.3d 894, 899.) In contrast, as that court found, petitioner’s
interpretation conflicts with the confidentiality of officer personnel records, as
recognized in Penal Code section 832.7, and the procedural requirements for
disclosure of such records set forth in Evidence Code sections 1043 and 1045,
subdivisions (a) through (c).
Petitioner contends further that a mandatory protective order limiting use of
Pitchess material to the case in which it is sought would conflict with the ethical
duties of his counsel, the San Diego County Public Defender. Petitioner’s
argument may be summarized as follows: The public defender’s office is
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essentially a law firm in which each deputy derives his or her authority by
delegation from the public defender, whose duties and powers are prescribed by
statute. (Mowrer v. Superior Court (1969) 3 Cal.App.3d 223, 230-231.) Each
member of the office has the ethical duty not to represent conflicting interests (see
59 Ops.Cal.Atty.Gen. 27 (1976); Rules Prof. Conduct, rules 1-100(B), 3-310), and
a confidence obtained by one member of the office is treated as held by all
members. Thus, according to petitioner, an order directed at one public defender
not to reveal Pitchess material is the equivalent of an order directing the public
defender not to reveal such information to himself or herself. Not only would
such an order be untenable, petitioner argues, but it undermines fair representation
and encourages inefficiency and duplication of effort, in that members of the
public defender’s office must feign ignorance of Pitchess information personally
known to them and instead file repeated Pitchess motions in subsequent cases, not
“using” previously disclosed information in making showings of good cause for
disclosure.
We are unpersuaded. As the city attorney reasons, petitioner’s argument
fails to identify any impediment to the public defender’s ability to represent him.
Moreover, trial courts have broad discretion in ruling on motions to discover
police personnel records and, in doing so, as we have discussed, they are
implementing a careful balancing process between the directly conflicting,
substantial interests of the officer and the defendant. (People v. Samayoa (1997)
15 Cal.4th 795, 827; People v. Jackson (1996) 13 Cal.4th 1164, 1220.) Arguably,
this specific statutory judicial obligation supersedes a public defender’s office’s
general rules concerning distribution of authority to deputies or attribution to all
deputies of knowledge gained by any one of them.
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C. Prosecutorial Standing and Entitlement to Disclosed Information
Real party in interest the District Attorney for the County of San Diego
argues he has a right, on behalf of the People, to be heard in Pitchess proceedings
and to concurrently receive material ordered disclosed after a successful defense
motion. In support, the district attorney cites several statutory provisions, none of
which explicitly confers the rights he seeks.
Code of Civil Procedure section 1005, subdivisions (a)(6) and (b), on which
the district attorney relies, set forth the formal requirements for notice and hearing
on Pitchess motions, but are silent with regard to whether notice shall be given to
the district attorney, as well as to the governmental agency that holds the records
sought. Penal Code section 684, unamended since its enactment in 1872, provides
that the People of the State of California are a party to any criminal prosecution,
but does not speak to the question of notice. Evidence Code section 1043,
subdivision (a) requires service of notice of a Pitchess motion on the governmental
agency having custody of the records sought, but provides no insight into whether
other parties are to be given notice in this context.
The district attorney also relies on the state constitutional guarantee of due
process found in article I, section 29 of the California Constitution. The provision,
adopted in 1990 as part of Proposition 115, enshrines the People’s right to due
process of law. Observing that “the central meaning of procedural due process is
that parties whose rights are to be affected are entitled to be heard” (People v.
Sutton (1993) 19 Cal.App.4th 795, 803, citing, inter alia, Fuentes v. Shevin (1972)
407 U.S. 67, 80), the district attorney argues he has a “strong and specific interest
in every Pitchess discovery motion filed in a criminal prosecution,” entitling him
to notice, presence and a right to be heard, in that the result of a Pitchess hearing
may affect the outcome of the underlying criminal action. The Court of Appeal
agreed, reasoning that, because the ruling on a Pitchess motion may affect the
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outcome of the whole criminal proceeding, state constitutional due process
principles afford the district attorney a right both to notice and hearing, and to
receipt of disclosed records.
We have no doubt that, as a party to the underlying criminal proceeding,
the district attorney under general due process principles is entitled to notice of the
date and place of the hearing on a defense Pitchess motion. In this manner, if the
court requires clarification or explanation of any matters set forth in the supporting
affidavits, it will be able to ask questions of both the defense and the prosecution
and thus obtain any information the court deems “ ‘essential’ ” to a fair and proper
decision. (Cf. People v. Ayala (2000) 24 Cal.4th 243, 262.)5 However, the district
attorney, in asserting entitlement to argue the prosecutorial point of view and to
receive any information the court orders disclosed, overstates the extent of his
legitimate interest in what is essentially a third party discovery proceeding. In a
Pitchess hearing, the district attorney prosecuting the underlying criminal case
represents neither the custodian of records nor their subject, and thus has no direct
stake in the outcome. Instructive in this regard is Bullen v. Superior Court (1988)
204 Cal.App.3d 22. In that case, the district attorney purported to appear on
behalf of a third party to an underlying criminal prosecution, in mandate
proceedings seeking to compel the superior court to vacate its order allowing the
defense access to the third party’s home for discovery purposes. Finding no
statute authorizing the district attorney to represent a third party in discovery

5
We are not suggesting that such notice include the affidavits and/or any
other information in support of the Pitchess motion. (Cf. People v. Superior Court
(Barrett) (2000) 80 Cal.App.4th 1305, 1320-1321 [party seeking discovery of
materials in possession of third party by means of subpoena duces tecum not
required to provide opposing party with notice of theories of relevancy of
materials sought].)
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proceedings in a criminal action, the Bullen court ordered the district attorney’s
recusal. (Id. at p. 25.) Arguably, for a prosecutor to actively challenge the
sufficiency of a Pitchess movant’s good cause showing is to advance the interests
of the third party custodian and police officer. The circumstance, moreover, that a
successful Pitchess motion may yield information leading to evidence admissible
in the underlying criminal proceeding does not necessarily give the district
attorney an interest in the motion meriting the full panoply of due process rights in
Pitchess proceedings. Notably, the reciprocal discovery statutes enable the
prosecution to prepare to meet the defense case whenever defense receipt of
Pitchess disclosure ripens into the intent to call a witness. (See Pen. Code,
§ 1054.3.)
The Pitchess procedure is, as noted, in essence a special instance of third
party discovery. Another such procedure is reflected in Penal Code sections 1326
and 1327, which empower either party in a criminal case to serve a subpoena
duces tecum requiring the person or entity in possession of the materials sought to
produce the information in court for the party’s inspection. (People v. Blair
(1979) 25 Cal.3d 640, 651; People v. Superior Court (Barrett), supra, 80
Cal.App.4th at p. 1315; Pacific Lighting Leasing Co. v. Superior Court (1976) 60
Cal.App.3d 552, 560.) In such case, if the custodian of records objects to
disclosure of the information sought, the party seeking the information must make
a plausible justification or a good cause showing of need therefor. Significantly in
this context, the defense is not required, on pain of revealing its possible strategies
and work product, to provide the prosecution with notice of its theories of
relevancy of the materials sought, but instead may make an offer of proof at an in
camera hearing. (People v. Superior Court (Barrett), supra, at pp. 1320-1321.) A
defendant’s Sixth Amendment right to the assistance of counsel in the preparation
of a case for trial likewise encompasses the assistance of, and confidential
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communication with, experts in preparing a defense. (Prince v. Superior Court
(1992) 8 Cal.App.4th 1176, 1180 [where sufficient semen sample existed to permit
independent DNA testing by both prosecution and defense, prosecution expert was
not entitled to observe and obtain results of defense testing].) The right logically
extends to the opportunity to investigate and develop evidence generally, such as
impeachment evidence of the kind at issue here.
Nor do we find statutory authority to compel the defense or the trial court to
share with the prosecution the fruits of a successful Pitchess motion. The prosecution
is entitled to discovery from the defense only in accordance with Penal Code
sections 1054.3 and 1054.7. (Pen. Code, § 1054, subd. (e); see People v. Tillis (1998)
18 Cal.4th 284, 294.) Of course, the prosecution itself remains free to seek Pitchess
disclosure by complying with the procedure set forth in Evidence Code sections
1043 and 1045.6 Absent such compliance, contrary to the premise underlying
Justice Baxter’s concurring and dissenting opinion, peace officer personnel

6
Because we conclude the prosecution has no automatic entitlement to
defense-initiated Pitchess discovery, we do not address petitioner’s further
argument that receipt of such information would create an obligation, pursuant to
Brady v. Maryland (1963) 373 U.S. 83, to provide the defense, in future cases
where the officer in question is a material witness, with whatever disclosed
Pitchess information bears on the officer’s credibility or is significantly
exculpatory. To the extent a prosecution-initiated Pitchess motion yields
disclosure of such information, the prosecutor’s obligations, as in any case, are
governed by constitutional requirements in the first instance. (See Izazaga v.
Superior Court (1991) 54 Cal.3d 356, 378 [“The prosecutor’s duties of disclosure
under the due process clause are wholly independent of any statutory scheme of
reciprocal discovery. The due process requirements are self-executing and need
no statutory support to be effective. . . . [I]f a statutory discovery scheme exists,
these due process requirements operate outside such a scheme. The prosecutor is
obligated to disclose such evidence voluntarily, whether or not the defendant
makes a request for discovery.”].) Footnote 8 of Justice Baxter’s concurring and
dissenting opinion must be understood with these principles in mind.
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records retain their confidentiality vis-à-vis the prosecution. (Pen. Code, § 832.7; see
People v. Superior Court (Gremminger) (1997) 58 Cal.App.4th 397, 407.)7
DISPOSITION
The judgment of the Court of Appeal is reversed, and that court is directed
to issue a writ directing the superior court to vacate its order denying the motion
and to reconsider the motion in light of this court’s opinion.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.

7
Insofar as, in most cases, the officer whose personnel records the defense is
seeking will be a prosecution witness or affiliated with the prosecution team, the
prosecutor may be able to learn of available impeachment material against the
officer by interviewing him or her, a possibility not necessarily open to the
defense.
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CONCURRING AND DISSENTING OPINION BY BAXTER, J.
I concur fully with the majority insofar as it requires a protective order
barring use of Pitchess1 information in any “court proceeding” besides the one in
which discovery was ordered. (Evid. Code, § 1045, subd. (e).) The statutory
scheme denies participants in other actions privileged information where such
information was disclosed after the trial court heard argument, held an in camera
review, and made a specific finding of “relevan[ce].” (Id., subd. (a).)
However, I cannot join the majority insofar as it concludes the prosecutor
in the same case: (1) is only entitled to notice of the defense Pitchess motion, and
to answer any questions posed by the trial court, (2) is never allowed to see
defense documents supporting the motion, even where such secrecy is unnecessary
and where the trial court seeks input on the motion, (3) is never allowed to present
the People’s litigation interests in the motion absent trial court questioning on the
matter, and (4) is never allowed to request and receive copies of Pitchess material
disclosed to the defense about peace officers who may testify at trial.
The reasoning behind this new rule is largely unexplained. It is also wrong.
The majority ignores controlling law and settled practice under the Pitchess
scheme, which is now three decades old. Consistent with well-established general

1
Pitchess v. Superior Court (1974) 11 Cal.3d 531, as codified by Penal Code
sections 832.7 and 832.8, and Evidence Code sections 1043 through 1045. (See
Stats. 1978, ch. 630, §§ 1-3, 5, 6, pp. 2082-2083.)
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motion practice, prosecutors have always been afforded full notice and
participation in the public phase of defense-initiated Pitchess hearings. Shared
discovery, in appropriate circumstances, is simply an efficient means of allowing
both parties to prepare their cases for trial. The majority identifies no law or
policy justification for denying the prosecution these rights in every case. I
therefore dissent.
A. THE PEOPLE ARE ENTITLED TO FULL NOTICE AND A HEARING
WHEN THE DEFENSE SEEKS PITCHESS DISCOVERY
Though it views the statutory scheme as silent on the issue, the majority
concedes the district attorney must receive notice “of the date and place of the
hearing on a defense Pitchess motion” consistent with the due process rights
ordinarily afforded to adverse parties. (Maj. opn., ante, at p. 14; see id., at p. 13.)
However, for reasons the majority does not explain, the same due process
principles do not encompass a related right to see “the affidavits and/or any other
information in support of the Pitchess motion” (maj. opn., ante, at p. 14, fn. 5), or
to fully “argue the prosecutorial point of view” (maj. opn., ante, at p. 14).
According to the majority, the prosecutor’s role at the hearing is apparently
limited to answering specific trial court questions. Only the custodian of records
and the concerned peace officer receive complete copies of the moving papers,
and possess an unrestricted right to participate under the majority’s approach.
The majority overlooks statutory provisions providing the prosecutor with
notice of the whole Pitchess motion, and with a meaningful opportunity to
respond. The starting point is Evidence Code section 1043, subdivision (a)
(Evidence Code section 1043(a)), which requires “written notice to the
governmental agency [that] has custody and control of the records,” and which
directs the agency to “immediately notify the individual whose records are
2

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sought.” The same section also incorporates the noticed motion rules in Code of
Civil Procedure section 1005.
The latter statute confirms that its requirements govern any “Hearing for
Discovery of Peace Officer Personnel Records pursuant to Section 1043 of the
Evidence Code.” (Code Civ. Proc., § 1005, subd. (a)(6).) Critical here is
subdivision (b) of Code of Civil Procedure section 1005 (Code of Civil Procedure
section 1005(b)). This provision — which the majority never quotes or construes
— states that “all moving and supporting papers shall be served and filed at least
21 calendar days before the hearing,” except as otherwise ordered or specifically
provided by law. (Ibid., italics added.)
These requirements are embedded into California law. Former rule
249(c)(6) of the California Rules of Court2 (adopted eff. Jan. 1, 1949) states that
“[t]he words ‘serve and file’ mean . . . proof of prior service . . . on counsel for
each adverse party who is represented by separate counsel.” (Italics added.) Rule
317(a) makes clear that the documents served on opposing counsel (here, the
prosecutor) include “all moving and supporting papers.” (Italics added.)3

2
All further unlabeled rule references are to the California Rules of Court.

3
Former rule 249 was renumbered and substantively amended effective
January 1, 2003. (See now rule 299.) In the process, the definitions of various
elementary legal terms were deleted, including the phrase “serve and file”
appearing in former rule 249(c)(6). (Id., subd. (c)(4) [“presiding judge”], (5)
[“party”], (7) [“case”].) It appears that all of these maxims, including the one
directing moving parties to “serve and file” all moving and supporting papers on
the “adverse party,” were deemed so well understood and noncontroversial as to
no longer require formal definition. (See Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2002) ¶ 9:82.5, p. 9(1)-39
[confirming without citation to former rule 249(c)(6) that Code of Civil Procedure
section 1005(b) requires service on counsel for “all parties who have appeared in
the action, whether or not the motion seeks relief against such parties”].)
3

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Here, the People are the “adverse party” (former rule 249(c)(6)) in any
criminal case in which the defendant invokes the Pitchess scheme. (See Gov.
Code, § 100, subd. (b) [all criminal prosecutions conducted by and for the People];
Pen. Code, § 684 [the People and defendant are opposing parties]; Department of
Corrections v. Superior Court (1988) 199 Cal.App.3d 1087, 1091, fn. 2
(Department of Corrections) [“the adverse party in these criminal proceedings is
the People . . . not the . . . third party from whom documents have been
subpoenaed” by defendant].) It follows that the district attorney must be “served
and filed” with any defense Pitchess motion, including “all moving and supporting
papers” (Code Civ. Proc., § 1005(b)), and must be allowed to appear and argue on
the People’s behalf. (See Gov. Code, § 26500 [as public prosecutor, the district
attorney represents the People in court].)
This open approach serves the aims of the Pitchess scheme. The special
notice requirement in Evidence Code section 1043(a) is necessary because the
individual officer whose records are sought and the government agency holding
the records may not themselves be parties to the action, and may not otherwise
have standing to appear. Their express inclusion through the Pitchess scheme
ensures protection in every case of the privacy interests guarded by the
Legislature. (See People v. Mooc (2001) 26 Cal.4th 1216, 1227 (Mooc) [noting
the officer’s “strong privacy interest” in his personnel file and the need to prevent
unnecessary access]; City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74,
84 (Santa Cruz) [even where Pitchess motion is granted, courts “further
safeguard” the private file by revealing only the dates of incidents and identifying
information about complainants and witnesses].)
Contrary to what the majority implies, Evidence Code section 1043(a)’s
silence about notice to the People and the district attorney does not limit their
participation at the hearing. Because the Pitchess scheme applies “in any criminal
4

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or civil proceeding” (Pen. Code, § 832.7, subd. (a)), the list of interested
participants other than the records custodian and the individual officer differs in
every case. Adverse parties like the People separately receive full notice and a
hearing under Code of Civil Procedure section 1005(b), which appears in
Evidence Code section 1043(a). Both statutes apply. Procedural rights afforded to
the custodian and officer under the latter statute exist in addition to, not in lieu of,
parallel rights afforded to the People and district attorney under the former statute.
Moreover, notice to the adverse party of any motion, and that party’s
corresponding right to appear and argue the motion, are “usually considered
essential” even in the absence of express statutory authority. (6 Witkin, Cal.
Procedure (4th ed. 1997) Proceedings Without Trial, § 6, p. 405; see Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 9:2.2, p. 9(1)-
2.) Exceptions may exist where the matter could not possibly “affect the rights of
an adverse party” (McDonald v. Severy (1936) 6 Cal.2d 629, 631 [dictum]), or
where there is an “overriding” need to hide the contents of the motion or hearing.
(People v. Ayala (2000) 24 Cal.4th 243, 294 (dis. opn. of George, C. J.) (Ayala).)
These principles reflect the disfavored nature of proceedings in which one
party is denied a meaningful opportunity to appear and be heard. Such
proceedings threaten both the even-handed nature of judicial rulings, and the truth-
seeking function of the courts. (Ayala, supra, 24 Cal.4th 243, 262.)4

4
According to Ayala, proceedings in which only one party participates can
produce “ ‘a shortage of factual and legal contentions. Not only are facts and law
from the [excluded party] lacking, but the moving party’s own presentation is
often abbreviated because no challenge from the [excluded party] is anticipated at
this point in the proceeding. The deficiency is frequently crucial, as reasonably
adequate factual and legal contentions from diverse perspectives can be essential
to the court’s initial decision.’ ” (Ayala, supra, 24 Cal.4th 243, 262.)
5

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Not surprisingly, the parties followed the law before the majority limited
the People’s right to receive all moving papers and to meaningfully respond at the
Pitchess hearing. Petitioner Maurice Alford and another man (defendants) were
charged with transporting and possessing cocaine base for sale. Besides moving
to suppress drugs allegedly found in their possession, defendants jointly sought
Pitchess discovery of past dishonesty by the arresting officers. Defendants hoped
to prove at both the suppression hearing and trial that they had been unlawfully
stopped, searched, questioned, and arrested, and that the officers falsely reported
and testified that the opposite was true. The district attorney received notice of the
discovery motion and attended at least one of two discovery hearings.5 The issue
of prosecutorial participation arose for the first time on appeal only because the
trial court, absent any request by defendants, summarily prevented the district
attorney from debating the scope of the Pitchess order. The Court of Appeal
found error, giving the People the full range of procedural protections now under
review — the right to notice of the whole motion, to appear and argue the motion,
and to receive copies of any Pitchess materials disclosed to the defense.
For almost 30 years, other courts and litigants have assumed that the People
are entitled to rights similar to those explicitly recognized on appeal here. (E.g.,
City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 6 (Brandon)
[defendant served Pitchess motion on both prosecutor and police department];
Mooc, supra, 26 Cal.4th 1216, 1222 [both prosecutor and police department

5
The record contains defendants’ Pitchess motion and counsel’s supporting
declaration, but no proof of service is attached. Nonetheless, the Court of Appeal
stated in its opinion that “the People were properly given notice of the Pitchess
motion.” Defendants did not dispute this factual assertion in seeking rehearing
and modification in the Court of Appeal. I therefore accept it as true. (See rule
28(c)(2).)
6

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litigated defendant’s Pitchess motion in trial court]; People v. Memro (1985) 38
Cal.3d 658, 675 (Memro) [prosecutor litigated defendant’s Pitchess motion in trial
court]; Garden Grove Police Department v. Superior Court (2001) 89 Cal.App.4th
430, 432 [both prosecutor and police department opposed defendant’s attempt to
avoid compliance with Pitchess scheme]; Larry E. v. Superior Court (1987) 194
Cal.App.3d 25, 28-29 [prosecutor opposed Pitchess motion made by juvenile
accused of crime]; Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 826
[juvenile accused of crime served Pitchess motion on both prosecutor and police
department, each of whom participated in the hearing].) The majority does not
acknowledge existing law and practice, or adequately explain its adoption of a
new rule at this late date.
B. THE PEOPLE HAVE LEGITIMATE INTERESTS IN RESPONDING TO DEFENSE
ATTEMPTS TO OBTAIN PRIVILEGED PITCHESS INFORMATION
The majority insists the People have no direct stake in the proceeding, and
that any opposition to defense Pitchess discovery would merely “advance the
interests of the third party custodian and police officer.” (Maj. opn., ante, at
p. 15.) This argument is used to reject the People’s claim that their due process
rights encompass both notice and a meaningful opportunity to be heard. The
majority also implies the Legislature could not possibly have contemplated
prosecutorial involvement in defense Pitchess hearings any more extensive than
what the majority allows.
Preliminarily, I agree that the chief guardians of a peace officer’s right to
privacy are the officer himself, and the government agency holding the personnel
file and charged with asserting any attendant privilege. Under the special notice
provisions of Evidence Code section 1043(a), both the officer and custodian can
resist unwarranted attempts by criminal defendants to penetrate the private file.
7

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However, the People have independent adversarial concerns that the
majority unfairly discounts. In general, the Pitchess scheme “carefully balances”
the moving party’s interest in relevant information against the privacy interests
identified above. (Santa Cruz, supra, 49 Cal.3d 74, 84.) Barriers to discovery
include failure to show “good cause” for in chambers review (Evid. Code, § 1043,
subd. (b)(3)), a finding that the material is not “relevant to the subject matter
involved in the pending litigation” (id., § 1045, subd. (a)), and the application of
certain “exclu[sions] from disclosure” (id., § 1045, subd. (b)). By creating such
finely tuned procedures and standards, and by requiring the balancing of such
important competing concerns, the Legislature obviously intended a full and
meaningful debate. To the extent it limits or bars the People’s participation in the
Pitchess process, the majority risks depriving trial courts of information
“ ‘essential’ ” to a fair and proper decision. (Ayala, supra, 24 Cal.4th 243, 262.)
District attorneys have long joined record custodians, peace officers, and
criminal defendants in litigating defense access to police personnel files. Much
like the facts of this case, Pitchess disputes typically involve officers who played a
significant role in investigating the charged crime. Their character, training, and
experience could affect the weight and admissibility of incriminating evidence.
(E.g., Brandon, supra, 29 Cal.4th 1, 5-6 [officers arrested defendant and
interviewed child molestation victim]; People v. Hughes (2002) 27 Cal.4th 287,
329-330 [officers questioned defendant at murder scene and then interviewed and
arrested him at police station]; Mooc, supra, 26 Cal.4th 1216, 1221-1222 [officer
was the victim of an alleged jailhouse battery by defendant]; People v. Jackson
(1996) 13 Cal.4th 1164, 1219-1220 [officers arrested and questioned defendant
and seized evidence of murder]; Memro, supra, 38 Cal.3d 658, 674; see id. at pp.
669-672 [officers elicited defendant’s confession to multiple murder].)
8

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The People have an interest in ensuring that an erroneous Pitchess
determination does not unfairly jeopardize their ability to obtain a valid conviction
at trial, and to prevent reversal on appeal. The majority opinion conflicts with
both settled law and practice insofar as it denies the People a meaningful
opportunity to protect genuine interests in the underlying case.
C. NOTHING PREVENTS THE TRIAL COURT FROM SHARING DEFENSE
PITCHESS DISCOVERY WITH THE PROSECUTION UPON REQUEST
A related issue is whether the trial court may ensure adequate and efficient
preparation for trial by granting a prosecutorial request for contemporaneous
copies of Pitchess items disclosed to the defense. The Court of Appeal said “yes,”
but the majority says “no.” I am not persuaded by my colleagues’ analysis.
The majority finds no statute “compel[ling]” the fruits of a successful
Pitchess motion to be shared with the prosecution. (Maj. opn., ante, at p. 16.)
This conclusion is based solely on the reciprocal discovery laws in Penal Code
sections 1054 et seq., adopted by voters as Proposition 115 in June 1990. The
majority insists any information obtained by the defense through court-ordered
Pitchess discovery need not be divulged until it “ripens into the intent to call a
witness.” (Maj. opn., ante, at p. 15.)
This analysis is incomplete. By its own terms, Proposition 115 governs
discovery in criminal cases “except as provided by . . . other express statutory
provisions.” (Pen. Code, § 1054, subd. (e).) One such provision is the Pitchess
scheme, which regulates privileged information that must be sought by court order
from disinterested third persons. (Albritton v. Superior Court (1990) 225
Cal.App.3d 961, 963 [holding Pitchess scheme coexists with Prop. 115 as an
independent discovery measure]; see People v. Superior Court (Barrett) (2000) 80
Cal.App.4th 1305, 1315 (Barrett) [noting subpoena duces tecum statutes regulate
discovery from nonparties independent of Prop. 115].) Aside from defense
9

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discovery obligations under Proposition 115, the question is whether the Pitchess
scheme precludes shared trial court discovery of the kind at issue here.
As the majority explains (maj. opn., ante, at pp. 7-12), the statutory scheme
protects privileged information after it has been found relevant and ordered
disclosed in a particular case. Evidence Code section 1045, subdivision (e)
requires issuance of an order preventing use of Pitchess material outside the “court
proceeding” in which it was obtained. This provision effectively prevents litigants
in one action from sharing Pitchess discovery with litigants in other actions.
However, no similar provision blocks a court-supervised exchange of Pitchess
information in the same case.
Indeed, the majority seems to concede that the People are virtually
guaranteed access to Pitchess information obtained by the defense if the district
attorney later brings his own Pitchess motion. (Maj. opn., ante, at p. 16.) The
reason is that relevance is a two-way street. Meritorious defense claims that
Pitchess material might impeach prosecution witnesses or undermine their factual
accounts necessarily implies that the prosecution could use the same material to
defend the credibility of its witnesses and support its theory of the case.
The majority’s suggestion — unsupported by authority — that each party
must separately file a Pitchess motion targeting the same records defies common
sense. Such duplication risks unnecessary delay of the underlying action and
wastes the time and resources of: (1) the government agency holding the disputed
records, (2) the peace officer whose records are sought, (3) counsel for these two
participants (here, the city attorney), and (4) the trial court. In analogous
situations where an accused obtains in camera review of privileged records
subpoenaed from a third person, and where the trial court reveals the content of
such records over the People’s objection, “counsel on both sides” have received
copies in order to prepare for trial. (People v. Webb (1993) 6 Cal.4th 494, 516.)
10

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The majority has not shown that the trial court lacks discretion to authorize a
similar exchange here. (Cf. Pen. Code, § 1054, subds. (b)-(d) [reciprocal
discovery must save court time and prevent unnecessary delay].)6
In any event, the majority’s elaborate efforts to shield these materials from
the prosecution are, in the end, pointless. Nothing in the majority opinion or
elsewhere in the law precludes the prosecutor, upon receiving notice of a defense
Pitchess motion, from noticing his own motion for court-ordered access to the
same materials. Such overlapping discovery requests can be consolidated for
hearing in the trial court, allowing each side to appear and argue their respective
interests in the material. Police personnel information is relevant to both sides in a
criminal case where it might lead to evidence impeaching prosecution witnesses or
undermining the People’s theory of the case. To extent the defense obtains
Pitchess material on this ground, the prosecution has an equal right to receive the
same material after a consolidated hearing on mutual motions.
D. THE PEOPLE’S INVOLVEMENT IN PITCHESS DISCOVERY DOES NOT
THREATEN THE DEFENDANT’S CONSTITUTIONAL RIGHTS AND STATUTORY
PRIVILEGES
The majority seeks to promote the Sixth Amendment right to counsel by
restricting prosecutorial participation in Pitchess hearings, and by denying access
to “affidavits and/or any other information in support of the Pitchess motion.”

6
Responding to a trial court question about the logistics of Pitchess
discovery in the present case, the city attorney suggested that it is not uncommon
for the People to receive copies of information ordered disclosed to the defense:
“Based on what the court has ordered, the [custodian of records] prepares a list of
names, addresses and phone numbers to [any] complaints that the court has
ordered revealed. Those are made available to both the prosecution and the
defense attorneys. So that means that both of those parties may come to [the
custodian of records] and pick that up.” (Italics added.)
11

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(Maj. opn., ante, at p. 14, fn. 5.) The majority purports to rely on principles and
authorities arising under the subpoena duces tecum statutes. (Maj. opn., ante, at
pp. 15-16, citing Pen. Code, §§ 1326-1327, and Barrett, supra, 80 Cal.App.4th
1305, 1320-1321.) The implication seems to be that subpoena hearings are
routinely conducted in the prosecutor’s absence so as to protect defense strategy
and work product. Without citation to authority, the majority insinuates, though it
does not hold, that the defense has a constitutional right to such secrecy.
Whatever the nature of those rights, the majority overstates any threat to defense
rights and privileges posed by either the Pitchess or subpoena process.
First, it seems unlikely that the defense will be forced to disclose its own
confidences in seeking Pitchess discovery. Defendants commonly investigate
police officers who search for physical evidence, or who conduct arrests and
interrogations. Competent counsel can be expected to look for any pattern of
aggression, untrustworthiness, or other misconduct documented in the officer’s
work files. This avenue of defense investigation is now so embedded in our
criminal practice that its pursuit in appropriate cases is a foregone conclusion.
Thus, defense theories of impeachment revealed during the Pitchess process can
most likely be inferred from information already in the People’s possession.7

7
It has been said that the “good cause” standard for obtaining in camera
review of Pitchess material is “relatively relaxed.” (Santa Cruz, supra, 49 Cal.3d
74, 84, citing Evid. Code, § 1043, subd. (b)(3).) This threshold requirement is
traceable to Pitchess, supra, 11 Cal.3d 531, 537, which said that the “requisite
showing may be satisfied by general allegations which establish some cause for
discovery.” In fact, Pitchess adopted this standard in an abundance of caution to
protect the moving party from unnecessary and impermissible disclosure of
constitutionally protected or statutorily privileged material. (Id. at p. 536.) The
majority’s contrary assumption about the effect of complying with the Pitchess
scheme seems to ignore its history and purpose.
12

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Second, similar assumptions are at work under the analogous subpoena
scheme — a scheme the majority implicitly misconstrues. The general rule is that
requests for subpoenaed records must be served on the prosecutor, who must be
allowed to appear and argue whether the requisite showing has been made. (City
of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1130-1131
(Alhambra); Department of Corrections, supra, 199 Cal.App.3d 1087, 1092-
1093.) As a practical matter, the defendant is rarely required to disclose privileged
information in order to obtain subpoenaed material. (Department of Corrections,
supra, 199 Cal.App.3d at p. 1094; Alhambra, supra, 205 Cal.App.3d at p. 1130.)
Moreover, courts are not “bound by [a] defendant’s naked claim of
confidentiality” in the subpoena context. (Alhambra, supra, 205 Cal.App.3d 1118,
1130.) Nor are such claims used to “totally exclude” the district attorney from the
discovery process. (Department of Corrections, supra, 199 Cal.App.3d 1087,
1094.) At most, trial courts review any information the defense presents ex parte,
and withhold from the prosecution only those “specific” items necessary to protect
the defendant’s constitutional rights and statutory privileges. (Ibid.) The trial
court then “proceed[s] to the merits of [the] defendant’s discovery motion giving
every reasonable notice and opportunity to participate to any opposing party.”
(Alhambra, supra, 205 Cal.App.3d at p. 1132, fn. omitted.) In other words,
proceedings on defense subpoena requests remain open to the prosecutor.
(Department of Corrections, supra, 199 Cal.App.3d at p. 1094.)
The majority ignores this authority and instead cites Barrett, supra, 80
Cal.App.4th 1305. In Barrett, however, the Court of Appeal distinguished its own
prior decision in Department of Corrections, supra, 199 Cal.App.3d 1087, and
summarily upheld a trial court ruling allowing the defendant to prove his need for
subpoenaed correctional records on both an in camera and ex parte basis. (Barrett,
supra, 80 Cal.App.4th at pp. 1320-1321.) The majority errs in suggesting that
13

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Barrett’s subpoena procedures were not extraordinary, and that courts generally
exclude the People from these proceedings.
Applying these rules here, the trial court may withhold specific moving
papers from the prosecutor, and excuse the prosecutor from selected portions of
the Pitchess hearing, where such secrecy is necessary to protect the defendant’s
constitutional rights and statutory privileges. However, such extraordinary steps
should occur only on a case-by-case basis where the defendant first makes a
compelling showing that a particular right or privilege would otherwise be
impaired. Hence, no constitutional or other purpose is served insofar as the
majority withholds materials supporting defense Pitchess motions in every case,
and bars the prosecutor from participating in the hearing absent a trial court
request to answer questions.8

8
I note one final consequence of the majority’s analysis. The conclusion
that the prosecution cannot see the entire defense Pitchess motion, freely respond
to it, or share materials discovered thereby, rests primarily on the assumption that
reciprocal notice, participation, and sharing are not expressly provided under the
applicable statutes. If the statutes do not afford such rights to the prosecution
when the defendant pursues Pitchess discovery, it appears the defendant would
lack similar rights when a Pitchess motion is filed by the prosecution. Either way,
the result is irrational.

In a related vein, the majority goes too far in prohibiting shared Pitchess
discovery by assuming a contrary rule might render the prosecutor a “Brady
vessel” in future cases for any police personnel information he thereby receives.
(See maj. opn., ante, at p. 16, fn. 6, citing Brady v. Maryland (1963) 373 U.S. 83.)
Whatever the Brady implications of allowing the prosecutor to request and receive
Pitchess material disclosed to the defense — an issue not before us here — the
competing considerations are the prosecutor’s alone to weigh, and are not a logical
basis on which to impose a rule of law prohibiting shared discovery in every case.
Also, the Brady implications of allowing the prosecutor to fully participate in
defense Pitchess proceedings and to request shared discovery seem diluted by the
availability of the Pitchess scheme itself. Under Brady, supra, 373 U.S. 83, and
its progeny, courts seek to provide a means of discovering “material exculpatory

(footnote continued on next page)
14

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E. CONCLUSION
Ignoring relevant authority, the majority overturns 30 years of law and
practice under the Pitchess scheme. This is the first and only decision depriving
the People of full notice and adversarial participation in defense Pitchess motions,
and denying access to Pitchess materials disclosed to the defendant. I disagree,
and would affirm the judgment of the Court of Appeal.
BAXTER, J.

WE CONCUR:

CHIN, J.
BROWN, J.

(footnote continued from previous page)
evidence” known by the prosecution or “others acting on [its] behalf” that would
not otherwise be available to the defense in a particular case. (In re Brown (1998)
17 Cal.4th 873, 879; see id. at pp. 877, 880.) California solved this problem long
ago with respect to the contents of police personnel files by establishing the
Pitchess procedure and allowing court-ordered discovery where the information is
relevant to the action.
15

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CONCURRING AND DISSENTING OPINION BY MORENO, J.
The majority concludes in Part B of its opinion that the protective order
required by Evidence Code section 1045, subdivision (e),1 “that the records
disclosed or discovered may not be used for any purpose other than a court
proceeding pursuant to applicable law,” limits the use of Pitchess discovery
(Pitchess v. Superior Court (1974) 11 Cal.3d 531) to the proceeding in which the
discovery was sought (maj. opn., ante, at pp. 7-11). The majority concludes in
Part C that a prosecutor is entitled to notice of the date and place of a Pitchess
hearing so that he or she can assist the trial court if it has any questions regarding
discovery, but has no right to concurrently receive materials disclosed to the
defense. (Maj. opn., ante, at pp. 12-16.)
While I join in Part C of the majority opinion, I respectfully disagree with
the majority’s conclusion in Part B regarding the limits of a section 1045(e)
protective order. Instead, I believe the Legislature intended that a section 1045(e)
protective order permit the use of Pitchess discovery in any court proceeding
pursuant to applicable law.

1
Hereafter section 1045(e). All statutory references are to the Evidence
Code unless otherwise noted.
1

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Discussion
A. Section
1045
In 1978, and again in 1982, the Legislature considered amendments to
section 1045 that would have restricted use of the information disclosed in a
Pitchess motion to the particular case in which the disclosure was made. The
Legislature rejected this restriction on both occasions. (See maj. opn., ante, at pp.
7-8.) Instead, the only limitation the Legislature placed on the use of such records
is that they “may not be used for any purpose other than a court proceeding
pursuant to applicable law.” (§ 1045(e).) The majority concludes, nonetheless,
that the use of Pitchess records is limited to the particular case in which those
records were obtained. It attempts to explain away the Legislature’s express
rejection of such a limitation in the following manner: because the Legislature
“gave up” in its attempt to enumerate specific types of cases subject to Pitchess
discovery, the language, “ ‘a court proceeding pursuant to applicable law,’ ” “did
not necessarily mean that disclosure was not limited to the case in which it was
being sought; rather, we surmise it meant the Legislature was not defining
substantively what kind of case that might be.” (Maj. opn., ante, at p. 9.)
I find this reasoning unpersuasive. First, it departs too far from established
canons of statutory construction. In People v. Robles (2000) 23 Cal.4th 1106,
1111 (Robles), we stated: “ ‘Because statutory language “generally provide[s] the
most reliable indicator” of [legislative] intent [citations], we turn to the words
themselves, giving them their “usual and ordinary meanings” and construing them
in context [citation].’ [Citation.] If the language contains no ambiguity, we
presume the Legislature meant what it said, and the plain meaning of the statute
governs. [Citation.] If, however, the statutory language is susceptible of more than
2

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one reasonable construction, we can look to the legislative history in aid of
ascertaining legislative intent. [Citation.]”
A plain reading of section 1045(e) does not lend itself to the majority’s
view. Simply stated, there is no language in the phrase, “the court shall . . . order
that the records disclosed or discovered may not be used for any purpose other
than a court proceeding pursuant to applicable law,” that suggests that the use of
Pitchess information is limited to a particular court proceeding. While the
Legislature could have utilized phrases such as “this court proceeding” or “the
pending court proceeding,” that would have so limited the use of such records, it
did not. Instead, the Legislature’s use of the indefinite article in the phrase “a
court proceeding” indicates that the use of Pitchess discovery was not to be
limited to the court proceeding in which discovery was sought, but to court
proceedings in general. Thus, under section 1045(e), information received
through Pitchess may not, for example, be posted on the Internet; but it may be
used in any court proceeding pursuant to applicable law.
Second, even if we assume, for the sake of argument, that the plain
language of section 1045(e) is susceptible to two interpretations and is thus
ambiguous, we look to the statute’s legislative history to ascertain the
Legislature’s true intent. (Robles, supra, 23 Cal.4th at p. 1111.)
The statutory Pitchess discovery scheme, of which section 1045(e) is a part,
was enacted by the Legislature in 1978. As the majority recognizes (maj. opn.,
ante, at p. 7), the original bill was amended on August 7, 1978, to state that the use
of records obtained pursuant to Pitchess discovery “shall be limited to the
litigation in aid of which access to the records or information was sought.”
(Assem. Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978,
italics omitted.) But a subsequent Assembly amendment deleted this language and
replaced it with the current version of section 1045, subdivision (d), which
3

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contains no such blanket limitation and instead provides that “the court may make
any order which justice requires to protect the officer or agency from unnecessary
annoyance, embarrassment or oppression.” (Assem. Amend. to Sen. Bill No. 1436
(1977-1978 Reg. Sess.) Aug. 30, 1978, italics omitted.)
Subdivision (e) of section 1045 was added in 1982. The original version of
the bill adding this provision expressly provided that peace officer personnel
records obtained through Pitchess discovery “may not be used for any purpose or
in any proceedings other than those identified in the motion pursuant to Section
1043.” (Sen. Bill No. 1065 (1981-1982 Reg. Sess.) March 30, 1981, italics
omitted.) This language was removed, however, by a subsequent amendment and
replaced with the current version of section 1045(e) which, as we have seen,
provides only that such records “may not be used for any purpose other than a
court proceeding pursuant to applicable law.”
The Legislature, in enacting the Pitchess discovery scheme, and again in
enacting section 1045(e), considered and rejected limiting the use of Pitchess
discovery to the proceedings in which the discovery was obtained. In Hess v.
Ford Motor Co. (2002) 27 Cal.4th 516, 531-532, we observed that, during the
enactment process of Civil Code section 3291, the Assembly amended the bill to
include prejudgment interest accrued pursuant to Civil Code section 3291 in the
judgment; thereafter, the Assembly deleted such language from the final version.
We stated, “ ‘the Legislature’s rejection of a specific provision which appeared in
the original version of an act supports the conclusion that the act should not be
construed to include the omitted provision.’ ” (Id. at p. 532.)
We applied this general rule, in the context of Pitchess, in City of Santa
Cruz v. Municipal Court (1989) 49 Cal.3d 74 (City of Santa Cruz), where we
considered whether the Legislature, when it passed section 1043, subdivision (b),
intended to require that affidavits in support of a request for Pitchess discovery be
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based upon personal knowledge. We noted that the initial drafts of section 1043
differed from its final version, in that the Legislature deleted the personal
knowledge requirement. We stated: “[I]f [the Legislature’s] intent was truly to
abrogate the use of affidavits on information and belief and to require affidavits
based on personal knowledge, it is reasonable to assume that it would have done
so explicitly. [Citation.] It obviously knew how. [Citation.] We decline to redraft
the statute to impose such a burdensome requirement where the Legislature has
conspicuously failed to do so. [¶] We need not speculate, however, as to the
Legislature’s intentions in this regard. The legislative history of section 1043
reveals that the Legislature expressly considered and rejected a requirement of
personal knowledge.” (City of Santa Cruz, supra, 49 Cal.3d at p. 88.)
The reasoning utilized in Santa Cruz applies equally here. The Legislature
obviously knew how to limit the use of Pitchess materials to a particular case. It
conspicuously failed to do so. Our court should not, therefore, redraft section
1045(e) to impose such a burdensome requirement when the Legislature expressly
considered and rejected the same. Instead, the better view, based on Hess and City
of Santa Cruz, is that the Legislature not only “gave up” on enumerating specific
crimes subject to Pitchess disclosure, it also “gave up” on trying to limit the use of
Pitchess material to a particular proceeding.
The majority counters by claiming (1) that section 1045(e) is “part of an
overall statutory scheme that carefully balances peace officers’ privacy interests in
their personnel records against defendants’ rights of access to information relevant
to their defense, . . . allowing a defendant to share such information with other
defendants would defeat the purpose of the balancing process,” and (2) that the
phrase “applicable law” in section 1045(e) “referred to section 1043 and thus
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signified the Legislature’s intent to restrict use of disclosed information to the
proceeding in which it was sought.” (Maj. opn., ante, at pp. 9-10.)2
I disagree, as there are sound reasons for the Legislature’s decision to
permit the use of Pitchess discovery in any subsequent proceeding. First, the
careful screening process that precedes the disclosure of Pitchess records
adequately protects any privacy interest an officer has in any record disclosed,
even if such record may be admitted in a subsequent judicial proceeding. As we
recently held in People v. Mooc (2001) 26 Cal.4th 1216, 1229, the obligation of
the city attorney, as a custodian of Pitchess records, is to bring to the in-chambers
Pitchess hearing only those documents that he or she deems “potentially relevant.”
The trial judge then screens those documents again, and discloses only those that
are “material[] to the subject matter involved in the pending litigation.”
(§ 1043(b)(3).) Any Pitchess information eventually received by a defense
attorney, therefore, has met the section 1043(b)(3) “good cause” and relevancy
requirements, and has been found to fall outside of Pitchess protection. In other
words, any information received by a defense attorney (typically an incident of
police misconduct) has been “distilled” through Pitchess; there is no need to repeat
that process, with different judges, again and again.
Second, a previously disclosed Pitchess document cannot be admitted into
evidence in any subsequent “court proceeding pursuant to applicable law,” unless
it meets the relevancy requirements of section 210, which is the functional

2
Section 1043, subdivision (b)(3) (hereafter section 1043(b)(3))
requires, in order to discover Pitchess information: “Affidavits showing good
cause for the discovery or disclosure sought, setting forth the materiality thereof to
the subject matter involved in the pending litigation and stating upon reasonable
belief that the governmental agency identified has the records or information from
the records.”
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equivalent of section 1043(b)(3) – such document must be material to the subject
matter involved in the pending litigation. Of course, such document is also subject
to exclusion under section 352 if its probative value is substantially outweighed by
its prejudicial effect.3 Accordingly, the majority oversteps in its assumption that
the phrase “applicable law” limits the use of Pitchess records to the particular case
in which those records were obtained.
Sadly, the majority’s interpretation forces defense attorneys, city attorneys
and trial judges to “reinvent the wheel” with each “new” Pitchess request
regarding the same peace officer – defense attorneys must write motions, city
attorneys must scour records, and judges must conduct in-chambers hearings,
simply to make the same Pitchess determination over and over again. Certainly,
trial judges are capable of ruling on evidentiary motions, prior to trial, to
determine whether a previously disclosed Pitchess record is admissible in a
particular case without resort to yet another Pitchess motion. Repetitive Pitchess
motions are an unnecessary and enormous waste of scant judicial and
governmental resources. It is therefore reasonable to infer that the Legislature
intended to avoid this result when it expressly rejected, twice, limiting the use of
Pitchess disclosure to the pending proceeding.
The majority’s decision also puts defense attorneys from the same firm in
the awkward position of withholding information from one another. (Maj. opn.,
ante, at pp. 10-11.) And where one lawyer has two cases in which the same
officer is a witness, it follows from the majority’s holding that she must not

3
Section 352 provides, in relevant part: “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger of undue prejudice,
of confusing the issues, or of misleading the jury.”
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disclose Pitchess information to herself. I do not believe the Legislature intended
this absurd result.
This aspect of the majority’s holding also forces defense attorneys to
needlessly conduct repetitive investigations upon receiving Pitchess records.
Thus, victims of substantiated police misconduct, previously disclosed by a court
under Pitchess, must intrusively be located and interrogated, again and again, only
to provide the same information to different defense investigators. In In re
Hamilton (1999) 20 Cal.4th 273, 307-309, Justice Chin, in his concurring opinion,
expressed concern over the practice of interviewing jurors years after a verdict in a
death penalty case in the hopes of generating a misconduct claim. He opined that
“perhaps the time has come for the Legislature to enact a comprehensive ‘Juror
Bill of Rights’ designed to protect jurors from intrusive tactics while at the same
time permitting reasonable means to expose the occasional genuine case of jury
misconduct.” (Id. at p. 308 (conc. opn. of Chin, J.).) It seems that the victims of
police misconduct should be entitled to the same courtesy.
B. Unanswered
Question
Most glaringly, the majority’s opinion leaves unanswered the threshold
question of which particular Pitchess “records disclosed or discovered” are subject
to a section 1045(e) protective order. Specifically, the information provided to the
defense by the trial court after a Pitchess hearing, in daily trial practice, is limited
to a complainant’s or witness’s name, address, telephone number, and the date of
the incident. As we stated in City of Santa Cruz, supra, 49 Cal.3d at page 84:
“[C]ourts have generally refused to disclose verbatim reports or records of any
kind from peace officer personnel files, ordering instead (as the municipal court
directed here) that the agency reveal only the name, address and phone number of
any prior complainants and witnesses and the dates of the incidents in question.”
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Thus, a trial court’s Pitchess disclosure necessarily presupposes an
independent investigation by defense counsel. Accordingly, the threshold
question we should endeavor to answer is whether a section 1045(e) protective
order (a) may only restrict the use of the actual information disclosed by the trial
court – i.e., the complainant’s and witness’s name, address, telephone number and
the date of the incident; or (b) may also encompass the direct fruits of the
information developed during this independent investigation – e.g., a
complainant’s or disclosed witness’s statement; or (c) may encompass other
information obtained during this independent investigation – e.g., physical
evidence (such as a photograph of injuries), or a statement obtained from a newly
discovered witness. Until the threshold question of what constitutes Pitchess
information is answered, the majority’s opinion leaves trial courts, city attorneys,
and defense attorneys, with little guidance.
CONCLUSION
The majority, quoting Santa Cruz, supra, 49 Cal.3d at page 84, repeats this
court’s 1989 observation that, “ ‘[a]s statutory schemes go [Pitchess] is a veritable
model of clarity and balance.’ ” (Maj. opn., ante, at p. 5.) But as I said in my
dissenting opinion in City of Los Angeles v. Superior Court (Brandon) (2002) 29
Cal.4th 1, 19, “While this may have been true in 1989, in daily trial practice, the
Pitchess pendulum has swung too far in favor of police privacy rights and against
the disclosure of relevant evidence.” In the present case, the pendulum continues
to swing in the wrong direction.
MORENO, J.
9

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Alford v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 89 Cal.App4.th 356
Rehearing Granted
__________________________________________________________________________________

Opinion No.

S098233
Date Filed: February 27, 2003
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Melinda J. Lasater
__________________________________________________________________________________

Attorneys for Appellant:

Steven J. Carroll, Public Defender, Matthew C. Braner, Gary Gibson and Courtney Cutter, Deputy Public
Defenders, for Petitioner Maurice Alford.

Craig J. Leff for Petitioner Donny Love.

Michael P. Judge, Public Defender (Los Angeles), Albert J. Menaster and Mark G. Harvis, Deputy Public
Defenders, as Amici Curiae on behalf of Petitioner Maurice Alford.

Kimiko Burton and Jeff Adachi, Public Defenders (San Francisco), Randall Martin, Chief Attorney, and
Stephen L. Rosen, Head Attorney, as Amici Curiae on behalf of Petitioner Maurice Alford.
__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Casey Gwinn, City Attorney, Anita M. Noone, Assistant City Attorney, Shannon M. Thomas, Carol A.
Trujillo and Paul E. Cooper, Deputy City Attorneys, for Real Party in Interest City of San Diego.

Paul J. Pfingst, District Attorney, Thomas F. McArdle and Anthony Lovett, Deputy District Attorneys, for
Real Party in Interest the People.

Steve Cooley, District Attorney (Los Angeles), George M. Palmer, Head Deputy District Attorney, and
Brentford J. Ferreira, Deputy District Attorney, as Amici Curiae on behalf of Real Parties in Interest.

Jones & Mayer, Gregory P. Palmer and Krista MacNevin Jee for 79 California Cities, California State
Sheriffs’ Association, California Police Chiefs Association and California Police Officers’ Association as
Amici Curiae on behalf of Real Party in Interest City of San Diego.

Bobbitt & Pinckard, Everett L. Bobbitt and Sanford A. Toyen for San Diego Police Officers Association as
Amicus Curiae.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Matthew C. Braner
Deputy Public Defender
233 “A” Street, Suite 1000
San Diego, CA 92101
(619) 338-4705

Paul E. Cooper
Deputy City Attorney
1200 Third Avenue, Suite 1620
San Diego, CA 92010
(619) 533-5500

Anthony Lovett
Deputy District Attorney
330 West Broadway, Suite 920
San Diego, CA 92101
(619) 531-3579

2

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Opinion Information

Date:	Docket Number:
Thu, 02/27/2003	S098233

Disposition
Feb 27 2003	Opinion: Reversed

Dockets
Jun 8 2001	Petition for review filed   by San Diego Co. Pub. Def. for petnr. (the C/A opin was ordered final as of 6-1-01)
Jun 12 2001	Received Court of Appeal record   one manila jacket
Jun 13 2001	Note:
Jul 19 2001	Time Extended to grant or deny Petition for Review   to 9-6-01
Aug 8 2001	MPetition for Review Granted; issues limited (criminal case)   The issues to be briefed and argued shall be limited to whether Evidence Code section 1045, subdivision (e) limits use of information disclosed pursuant to a Pitchess motion (Piechess v. Superior Court (1974) 11 cal.3d 531) to the proceeding in which disclosure was sought and whether the prosecutor has standing to be heard in such proceedings and to obtain information disclosed to the defense pursuant to such motion. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, JJS.
Aug 9 2001	Note:   Grant letter processed
Aug 30 2001	Application for Extension of Time filed   by Petitioner Alford to file the Opening Brief/Merits to 10/9/2001 (30 days) TCT
Sep 7 2001	Extension of Time application Granted   petitioner Alford to and including 10/9/2001 to file the opening brief on the merits.
Oct 9 2001	Opening brief on the merits filed   Petitioner Alford's. (Filed in San Diego)
Oct 11 2001	Request for Judicial Notice filed   by petitioner Alford to take judicial notice of documents (Evidence Code Subsections 459, 452(a), 452(c)
Nov 7 2001	Request for extension of time filed   RPI People [the other RPI] - asking to 11/28/2001 to file their answer brief on the merits. [ Granted to 11/28/2001 -- order prepared ]
Nov 8 2001	Answer brief on the merits filed   RPI City of San Diego (filed in San Diego)
Nov 19 2001	Extension of Time application Granted   RPI The People, by the District Attorney of San Diego, to file the answer brief on the merits to and including 11/28/2001.
Nov 28 2001	Answer brief on the merits filed   by the District Attorney of San Diego County on behalf of RPI The People (filed in San Diego)
Dec 18 2001	Reply brief filed (case fully briefed)   in San Diego by counsel for petitioner Maurice Alford
Jan 7 2002	Permission to file amicus curiae brief granted   79 California Cities, Cal. State Sheriffs' Association, and the Cal. Police Officers' Associaiton in support of RPI City of San Diego. Answer by any party due within 20 days.
Jan 7 2002	Amicus Curiae Brief filed by:   79 California Cities, et al. in support of RPI [City of DSan Diego]
Jan 10 2002	Received application to file Amicus Curiae Brief   and brief under separate cover - application in the form of a letter
Jan 14 2002	Permission to file amicus curiae brief granted   San Diego Police Officers Association (party supported not mentioned). Answer may be served and filed by any party within 20 days from the filing of the brief.
Jan 14 2002	Amicus Curiae Brief filed by:   by the San Diego Police Officers Association (party supported not mentioned)
Jan 15 2002	Received application to file amicus curiae brief; with brief   from L. A. Office amicus applilcation and brief of the L.A. County Public Defender in support of petitioner Alford.
Jan 17 2002	Response to amicus curiae brief filed   in San Diego by petitioner to amicus brief of California Cities and California Peace Officers Associations
Jan 17 2002	Permission to file amicus curiae brief granted   Los Angeles County Public Defender in support of petitioner. Answer may be served and filed by any party within 20 days of the filing of the brief.
Jan 17 2002	Amicus Curiae Brief filed by:   Los Angeles County Public Defender in support of petitioner
Jan 17 2002	Received application to file Amicus Curiae Brief   on behalf of the Los Angeles County District Attorney's Office in support of the People (appln & brief under seperate cover)
Jan 24 2002	Request for extension of time filed   in San Diego by petitioner requesting to 3/5/2002, to file his answer to the amicus curiae brief of the Los Angeles District Attorneys Office.
Jan 25 2002	Received:   in San Diego one day late petitioner's answer to amicus brief of the San Diego Polilce Officers Association. TCT
Jan 25 2002	Permission to file amicus curiae brief granted   Office of the Public Defender for the City and County of San Francisco in support of petitioner. Answer by any party due w/i 20 days of the filing of the brief.
Jan 25 2002	Amicus Curiae Brief filed by:   Office of the Public Defender for the City and County of San Francisco in support of petitioner.
Jan 25 2002	Permission to file amicus curiae brief granted   Los Angeles County District Attorney in support of real parties in interest.l Answer by any party due 20 days from the filing of the brief.
Jan 25 2002	Amicus Curiae Brief filed by:   Los Angeles County District attorney in support of RPIS.
Jan 30 2002	Response to amicus curiae brief filed   by petitioner Alford to amicus curiae brief of the San Diego Police Officers Association. [PERM]
Feb 1 2002	Extension of time granted   petitioner to and including March 5, 2002, to file petitioner's answer to the amicus brief of the Los Angeles District Attorneys Office.
Mar 5 2002	Response to amicus curiae brief filed   in San Diego by Petitioner Alford to the amicus brief of the Los Angeles County District Attorney
Sep 25 2002	Filed letter from:   Matthew Braner, counsel for petnr, re possible oral arg. scheduling
Oct 31 2002	Case ordered on calendar   12-4-02, 1:30pm, L.A.
Nov 25 2002	Received:   RPI City of San Diego's additional authorities not available at the time of filing of the answer.
Dec 4 2002	Cause argued and submitted
Feb 27 2003	Opinion filed: Judgment reversed   Plurality Opinion by Werdegar, J. -- joined by George, C.J. and Kennard, J. Concurring and Dissenting Opinion by Baxter, J. -- joined by Chin, J. and Brown, J. Concurring and Dissenting Opinion by Moreno, J.
Mar 12 2003	Rehearing petition filed   in San Diego by by the District Attorney of San Diego County for RPI
Mar 17 2003	Time extended to consider modification or rehearing   to and including May 28, 2003
Apr 16 2003	Rehearing denied   Baxter, J., Chin, J., and Brown, J., were of the opinion the petition should be granted.
Apr 16 2003	Remittitur issued (criminal case)   Two certified copies to CA4/Div. One
Apr 25 2003	Received:   Receipt for remittitur from CA4/1, signed for by Felix Quenga, Deputy Clerk

Briefs
Oct 9 2001	Opening brief on the merits filed
Nov 8 2001	Answer brief on the merits filed
Nov 28 2001	Answer brief on the merits filed
Dec 18 2001	Reply brief filed (case fully briefed)
Jan 7 2002	Amicus Curiae Brief filed by:
Jan 14 2002	Amicus Curiae Brief filed by:
Jan 17 2002	Response to amicus curiae brief filed
Jan 17 2002	Amicus Curiae Brief filed by:
Jan 25 2002	Amicus Curiae Brief filed by:
Jan 25 2002	Amicus Curiae Brief filed by:
Jan 30 2002	Response to amicus curiae brief filed
Mar 5 2002	Response to amicus curiae brief filed

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