St. Croix v. Superior Court

Filed 7/28/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JOHN ST. CROIX, as Executive Director,

etc., et al.,

Petitioners,

v. A140308

THE SUPERIOR COURT OF THE CITY

AND COUNTY OF SAN FRANCISCO, (San Francisco City & County

Super. Ct. No. CPF-13-513221)

Respondent;

ALLEN GROSSMAN,

Real Party in Interest.

San Francisco resident Allen Grossman, relying on state and local public records

laws, sought to obtain from John St. Croix, executive director of the San Francisco Ethics

Commission (Ethics Commission or commission), documents pertaining to the

development of certain commission regulations. St. Croix provided more than 120

documents, but, citing the attorney-client privilege (see Evid. Code, §§ 952, 954),

withheld 24 written communications between the commission and the San Francisco City

Attorney’s Office.

Grossman argued, and the trial court held, that a provision of the San Francisco

Sunshine Ordinance (Sunshine Ordinance or ordinance) (S.F. Admin. Code, ch. 67)

required disclosure of the documents, even if they otherwise would be protected by the

privilege. St. Croix and the commission (to whom we sometimes refer collectively as

City) petition for a writ of mandate, contending City’s charter incorporates the attorney-

client privilege and supersedes any contrary ordinance provision. We agree, and we hold

the trial court erred in ordering disclosure of the documents. We therefore grant City’s

writ petition.1

I. BACKGROUND

In October 2012, Grossman submitted a request under the California Public

Records Act (CPRA) (Gov. Code, § 6250 et seq.)2 and the Sunshine Ordinance for

documents relating to the commission’s regulations governing complaints alleging

violations of the ordinance. As part of this request, Grossman expressly sought

production of written communications between the Ethics Commission and the city

attorney’s office. Grossman requested drafts of the commission’s Sunshine Ordinance

regulations, a September 14, 2012 staff report about the regulations, and all documents

relating to “[t]he preparation, review, revision and distribution of all prior drafts and final

versions of the Draft Amendments and Staff Report, including, without limitation, emails,

memoranda, notes, letters or other correspondence or communications to or from the San

Francisco City Attorney, any Deputy City Attorney or any other person in the Office of

the San Francisco City Attorney.” (Italics added.)

St. Croix and his staff produced more than 120 documents, six of which were

partially redacted. St. Croix withheld other documents in their entirety on the grounds

they were protected by the attorney-client privilege and the attorney work product

doctrine. The 24 withheld documents include (1) 15 written requests from the

commission’s staff to the city attorney’s office for legal advice about the commission’s

proposed regulations, and (2) nine written responses by the city attorney’s office to the

commission’s staff, providing advice about the proposed regulations.

Grossman petitioned for a writ of mandate in the trial court, arguing a provision of

the Sunshine Ordinance (S.F. Admin. Code, § 67.24, subd. (b)(1)(iii)) compels disclosure

of the documents at issue, even if they would otherwise be protected by privilege. That

1

Because we conclude the documents are protected by the attorney-client

privilege, we need not address City’s argument that some of the documents are also

protected by the attorney work product doctrine.

2

All statutory references are to the Government Code unless otherwise stated.

2

provision of the ordinance states that, “[n]otwithstanding any exemptions otherwise

provided by law,” the following documents are subject to disclosure under the ordinance:

“(iii) Advice on compliance with, analysis of, an opinion concerning liability under, or

any communication otherwise concerning the California Public Records Act, the Ralph

M. Brown Act, the Political Reform Act, any San Francisco Governmental Ethics Code,

or this Ordinance [(i.e., the Sunshine Ordinance)].” (S.F. Admin. Code, § 67.24, subd.

(b)(1).) 3

City opposed disclosure, contending the San Francisco City Charter (charter),

which creates the office of the city attorney and specifies his or her duties, incorporates

the attorney-client privilege, and the ordinance cannot validly modify the charter by

barring City from asserting the privilege.

The trial court granted Grossman’s petition, holding San Francisco Administrative

Code section 67.24, subdivision (b)(1)(iii) required production of the 24 attorney-client

communications withheld by St. Croix. The court stated City’s argument that the charter

superseded the ordinance provision, an issue that both parties had briefed and argued,

was “not properly before” the court.

St. Croix and the commission petitioned this court for a writ of mandate (see

§ 6259, subd. (c)) and moved for a stay of the trial court’s order. We stayed the court’s

order pending resolution of this writ proceeding, and later issued an order to show cause.

II. DISCUSSION

A. The Attorney-Client Privilege and Public Records Laws

Our Supreme Court has stated: “The attorney-client privilege, set forth at

Evidence Code section 954, confers a privilege on the client ‘to refuse to disclose, and to

prevent another from disclosing, a confidential communication between client and

lawyer . . . .’ The privilege ‘has been a hallmark of Anglo-American jurisprudence for

3

The trial court took judicial notice of San Francisco Administrative Code section

67.24. (See Evid. Code, § 452, subd. (b); Madain v. City of Stanton (2010) 185

Cal.App.4th 1277, 1280, fn. 1 [taking judicial notice of relevant portions of municipal

code].)

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almost 400 years.’ [Citation.] Its fundamental purpose ‘is to safeguard the confidential

relationship between clients and their attorneys so as to promote full and open discussion

of the facts and tactics surrounding individual legal matters. [Citation.] . . . [¶] Although

exercise of the privilege may occasionally result in the suppression of relevant evidence,

the Legislature of this state has determined that these concerns are outweighed by the

importance of preserving confidentiality in the attorney-client relationship. As this court

has stated: “The privilege is given on grounds of public policy in the belief that the

benefits derived therefrom justify the risk that unjust decisions may sometimes result

from the suppression of relevant evidence.” [Citations.]’ [Citation.] ‘[T]he privilege is

absolute and disclosure may not be ordered, without regard to relevance, necessity or any

particular circumstances peculiar to the case.’ ” (Costco Wholesale Corp. v. Superior

Court (2009) 47 Cal.4th 725, 732.)

The scope and availability of the attorney-client privilege are governed by statute.

(See Evid. Code, § 950 et seq.) “Courts may not add to the statutory privileges except as

required by state or federal constitutional law [citations], nor may courts imply unwritten

exceptions to existing statutory privileges.” (Roberts v. City of Palmdale (1993)

5 Cal.4th 363, 373 (Roberts); see Evid. Code, § 911.)

In the context of public records requests, the CPRA expressly exempts from

disclosure documents that fall within the statutory attorney-client privilege. The CPRA

defines “public record” as a “writing containing information relating to the conduct of the

people’s business prepared, owned, used, or retained by any state or local agency

regardless of physical form or characteristics.” (§ 6252, subd. (e).) The CPRA exempts

certain public records from disclosure, including “[r]ecords, the disclosure of which is

exempted or prohibited pursuant to federal or state law, including, but not limited to,

provisions of the Evidence Code relating to privilege.” (§ 6254, subd. (k).) “By its

reference to the privileges contained in the Evidence Code, . . . the [CPRA] has made the

attorney-client privilege applicable to public records.” (Roberts, supra, 5 Cal.4th at

p. 370.)

4

In Roberts, the Supreme Court emphasized the importance of the attorney-client

privilege in protecting the confidentiality of written communications between a public

agency and its counsel. (Roberts, supra, 5 Cal.4th at pp. 380–381.) The Roberts court

held that, although the Ralph M. Brown Act (Brown Act; § 54950 et seq.) establishes

open meeting requirements applicable to local governing bodies (see §§ 54950, 54953)

and abrogates the attorney-client privilege (with certain exceptions) for the purposes of

those open meeting requirements (see § 54956.9), the Brown Act does not abrogate the

privilege applicable to written communications under the CPRA. (Roberts, at pp. 373–

374, 377.) The Roberts court rejected the argument that, in the public agency context, the

attorney-client privilege should not apply or should be limited to situations involving

pending litigation. (Id. at pp. 379–380.) Such arguments were “inconsistent with the

decision of the Legislature in enacting the [CPRA] to afford public entities the attorney-

client privilege as to writings to the extent authorized by the Evidence Code.” (Id. at

p. 380.)

B. The Charter Incorporates the State Law Attorney-Client Privilege and

Supersedes the Contrary Ordinance Provision

City argues provisions of its charter establishing the office and duties of the city

attorney (1) incorporate the protections of the state law attorney-client privilege for

written communications between the city attorney and his or her clients, and therefore

(2) supersede the provision of the Sunshine Ordinance purporting to compel disclosure of

documents falling within the scope of the privilege. We agree.

1. The Charter Incorporates the Privilege

“The City Charter represents the supreme law of the City and County of San

Francisco, subject only to conflicting provisions in the United States and California

Constitutions or to preemptive state law. [Citation.] The provisions of the City Charter

supersede all municipal laws, ordinances, rules or regulations inconsistent therewith.”

(Stuart v. Civil Service Com. (1985) 174 Cal.App.3d 201, 206.) “Generally, the same

principles of construction applicable to statutes apply to the interpretation of municipal

charters. [Citations.] The courts must always look first to the express language of the

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statute to ascertain its meaning.” (United Assn. of Journeymen v. City and County of San

Francisco (1995) 32 Cal.App.4th 751, 760.)

City’s charter designates the city attorney as an elected officer of City and

specifies the duties of the office. (S.F. Charter, §§ 6.100, 6.102.)4 The charter states the

city attorney must “[r]epresent the City and County in legal proceedings with respect to

which it has an interest.” (S.F. Charter, § 6.102(1).) Under certain circumstances, the

city attorney also must represent individual City officers and officials in litigation. (S.F.

Charter, § 6.102(2).) The city attorney shall initiate litigation when “a cause of action

exists in favor of” City. (S.F. Charter, § 6.102(3).) Significantly for the present case, the

city attorney must, “[u]pon request, provide advice or written opinion to any officer,

department head or board, commission or other unit of government of” City. 5 (S.F.

Charter, § 6.102(4).) The city attorney also must “[m]ake recommendations for or

against the settlement or dismissal of legal proceedings” (S.F. Charter, § 6.102(5)) and

must review and approve as to form “all surety bonds, contracts and, prior to enactment,

all ordinances.” (S.F. Charter, § 6.102(6).) The charter requires the city attorney to

establish a claims bureau “to investigate, evaluate and settle for the several boards,

commissions and departments all claims for money or damages.” (S.F. Charter,

§ 6.102(9).)

The above charter provisions, by establishing the office and responsibilities of the

city attorney, establish an attorney-client relationship between the city attorney on the

one hand, and City and its officers and agencies (including the Ethics Commission) on

the other. As noted above, state law establishes that the privilege’s protection of the

4

The trial court took judicial notice of section 6.102 of the San Francisco Charter.

We grant the parties’ request that we take judicial notice of section 6.100 of the San

Francisco Charter. (See Evid. Code, §§ 451, subd. (a) [judicial notice of city charter

provisions], 459, subd. (a).)

5

In addition to this provision requiring the city attorney to provide advice to all

boards and commissions, section 15.102 of the San Francisco Charter specifies the city

attorney is the legal advisor to the Ethics Commission. We grant the parties’ request that

we take judicial notice of sections 15.100 through 15.102 of the San Francisco Charter.

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confidentiality of written attorney-client communications is fundamental to the attorney-

client relationship, in the public sector as well as in the private sector, and is vital to the

effective administration of justice. (See Evid. Code, § 950 et seq.; Roberts, supra,

5 Cal.4th at pp. 380–381.) We therefore conclude the charter incorporates the state law

attorney-client privilege for written communications between the city attorney and his or

her clients.

In reaching this conclusion, we are guided by Welfare Rights Organization v.

Crisan (1983) 33 Cal.3d 766 (Welfare Rights), in which our Supreme Court emphasized

the importance of confidential communications to a relationship similar to that between

attorney and client. The Welfare Rights court concluded a statute (Welf. & Inst. Code,

§ 10950) authorizing recipients of public benefits to be represented by laypersons in

administrative proceedings necessarily implied the existence of a privilege protecting

communications between the lay representative and the client. (Welfare Rights, at

pp. 770–771.) The statute specified a benefits applicant or recipient could appear “ ‘in

person or through an authorized representative.’ ” (Id. at p. 770, italics added by

Welfare Rights.) The Supreme Court held that “the considerations which support the

privilege are so generally accepted that the Legislature must have implied its existence as

an integral part of the right to representation by lay persons.” (Id. at p. 771.) Similarly,

here, we conclude the state statutory privilege’s protection of attorney-client

communications is an integral part of the attorney-client relationship created by the

charter.6

6

In addition to specifying the above duties of the city attorney, the charter states

that, “[s]ubject to the powers and duties set forth in” the charter, the city attorney and

other specified elective officers “shall have such additional powers and duties prescribed

by state law for their respective office.” (S.F. Charter, § 6.100.) City argues this

provision requires the city attorney to comply with state laws requiring attorneys to

protect their clients’ confidences. (See Bus. & Prof. Code, § 6068, subd. (e)(1); Evid.

Code, § 955; see also State Bar Rules Prof. Conduct, rule 3-100(A).) Because we

conclude the charter’s specification of the city attorney’s duties creates an attorney-client

relationship between the city attorney and City agencies, and incorporates the attorney-

client privilege as an integral part of that relationship, we do not address whether section

7

Grossman argues we should construe the charter narrowly to avoid any limitation

on the public’s right of access. He cites article I, section 3, subdivision (b)(2) of the

California Constitution, which states: “A statute, court rule, or other authority . . . shall

be broadly construed if it furthers the people’s right of access, and narrowly construed if

it limits the right of access. . . .” (See Sander v. State Bar of California (2013) 58 Cal.4th

300, 312–313.) That provision does not assist Grossman. We have concluded above that

the charter establishes an attorney-client relationship between the city attorney and City

agencies. Grossman does not dispute that conclusion and does not claim that a narrower

construction of the charter would produce a different result. Under state law, the

attorney-client privilege is a “generally accepted” and “integral” part of the attorney-

client relationship. (See Welfare Rights, supra, 33 Cal.3d at p. 771.) Accordingly, we

have further concluded above that the charter necessarily incorporates the state law

attorney-client privilege as a part of the attorney-client relationship it creates. That

conclusion does not result from a broad construction of the charter’s provisions (which

unambiguously create an attorney-client relationship) and would not be altered by

adopting a narrower construction of those provisions; instead, our holding just reflects the

well-established centrality of the privilege to the attorney-client relationship.7

Grossman also contends we should construe the charter narrowly to avoid a

conflict with the ordinance. But the case he cites, People v. Kennedy (2001)

91 Cal.App.4th 288, 290, 297, involved an alleged conflict between two statutory

provisions appearing in different codes, the Business and Professions Code and the

6.100 of the San Francisco Charter provides an independent basis for granting City’s

petition.

7

We also note article I, section 3, subdivision (b), which was added to the

Constitution by Proposition 59, a 2004 ballot measure (see Alvarez v. Superior Court

(2007) 154 Cal.App.4th 642, 656), specifies it “does not repeal or nullify, expressly or by

implication, any constitutional or statutory exception to the right of access to public

records . . . that is in effect on the effective date of this subdivision . . . .” (Cal. Const.,

art. I, § 3, subd. (b)(5)), such as the preexisting statutory exemption for privileged

materials (see Evid. Code, § 954; Gov. Code § 6254, subd. (k); Roberts, supra, 5 Cal.4th

at pp. 370–371).

8

Health and Safety Code. In that context, a court should “adopt, if possible, a construction

which avoids apparent conflicts between different statutory provisions . . . .” (People v.

Kennedy, at p. 297.) That principle does not establish a court must construe a city charter

to conform to a municipal ordinance. To the contrary, when a city enacts an ordinance or

takes other action, it cannot contravene its charter. (See Domar Electric, Inc. v. City of

Los Angeles (1994) 9 Cal.4th 161, 171 [charter city may not act in conflict with its

charter; “Any act that is violative of or not in compliance with the charter is void.”]; see

also Rivero v. Superior Court (1997) 54 Cal.App.4th 1048, 1050–1051, 1058–1060

[application of provision of San Francisco Sunshine Ordinance contravened state

statute].) In any event, as noted above, construing the charter’s provisions more narrowly

would not change our analysis. The charter unambiguously creates an attorney-client

relationship between the city attorney and the commission, and the state law attorney-

client privilege is a fundamental aspect of that relationship.

Grossman next claims there is no conflict between the charter’s establishment of

an attorney-client relationship and the ordinance’s purported elimination of the privilege

for certain attorney-client communications, because “attorney-client communications are

not necessarily confidential,” especially for public sector attorneys. Grossman notes that

(as we have discussed above) the Brown Act requires that most meetings of local

governing bodies be public and limits the attorney-client privilege in that context (see

§ 54956.9). But, as we have also explained above (and as Grossman does not appear to

dispute), the Brown Act does not limit the privilege as to written communications

between public sector attorneys and their clients, such as the materials at issue here.

Written attorney-client communications remain privileged and exempt from disclosure

pursuant to the CPRA. (Evid. Code, § 954; Gov. Code § 6254, subd. (k); Roberts, supra,

5 Cal.4th at pp. 377, 381.)

Grossman argues the Brown Act’s provisions nevertheless support a conclusion

that, at least in the public sector, confidentiality is not fundamental to the provision of

legal advice. Not so. California law recognizes that “public entities need confidential

legal advice to the same extent as do private clients.” (Roberts, supra, 5 Cal.4th at

9

p. 374.) Our determination that the charter incorporates the state law attorney-client

privilege and its protection of written attorney-client communications is thus consistent

with the “balance between the competing interests in open government and effective

administration [that] has been struck for local governing bodies in the [CPRA] and the

Brown Act.” (Roberts, at p. 381.)

2. The Charter Supersedes the Contrary Ordinance Provision

Because the charter incorporates the attorney-client privilege, an ordinance cannot

eliminate the privilege for a class of communications between the city attorney and his or

her clients. “ ‘[A]n ordinance must conform to, be subordinate to, not conflict with, and

not exceed the [city’s] charter, and can no more change or limit the effect of the charter

than a legislative act can modify or supersede a provision of the constitution of the

state.’ ” (Currieri v. Roseville (1970) 4 Cal.App.3d 997, 1001.) To the extent San

Francisco Administrative Code section 67.24, subdivision (b)(1)(iii) purports to compel

disclosure of materials that fall within the scope of the attorney-client privilege, such as

the written communications between the Ethics Commission and the city attorney at issue

here, it conflicts with the charter’s protection of such materials. The trial court therefore

erred in ordering disclosure of the documents pursuant to the ordinance.8

Seeking to avoid this result, Grossman argues that, because San Francisco

Administrative Code section 67.24, subdivision (b)(1)(iii) purports to require disclosure

of the materials at issue, they were “never confidential in the first place, and no privilege

ever attached.” He alternatively contends that, if the privilege did apply, the voters could

“waive” it by enacting the ordinance. We reject both arguments. Because the charter

incorporates the privilege, an ordinance (whether enacted by City’s board of supervisors

or by the voters) cannot eliminate it, either by designating as not confidential a class of

materials that otherwise would be protected by the privilege, or by waiving the privilege

8

Because we conclude the charter supersedes the disputed ordinance provision,

we do not address City’s argument that the ordinance provision is “invalid for [the]

independent reason” that it would “impermissibly interfere” with the city attorney’s

performance of his or her duties.

10

as to that category of documents; only a charter amendment can achieve that result. (See

City and County of San Francisco v. Patterson (1988) 202 Cal.App.3d 95, 102, 104–105

[initiative ordinance cannot limit effect of charter; electorate has no greater power to

legislate by ordinance than City’s board of supervisors possesses].)

Grossman also cites a provision of the CPRA, section 6253, subdivision (e), that

permits localities to provide greater access to records than the CPRA itself requires.

Section 6253, subdivision (e) states: “Except as otherwise prohibited by law, a state or

local agency may adopt requirements for itself that allow for faster, more efficient, or

greater access to records than prescribed by the minimum standards set forth in [the

CPRA].” But section 6253, subdivision (e) does not purport to authorize a locality to

enact an ordinance about records access that conflicts with the locality’s governing city

charter. To change local law in this circumstance, a charter amendment is necessary.

(See City and County of San Francisco v. Patterson, supra, 202 Cal.App.3d at pp. 102,

104–105.)

Finally, Grossman appears to suggest the privilege should protect the disputed

materials from disclosure only if the commission demonstrates disclosure of those

particular documents would impede the city attorney’s representation of the commission.

We disagree. As noted, when the privilege applies, as it does here under the charter, it

“ ‘is absolute and disclosure may not be ordered, without regard to relevance, necessity or

any particular circumstances peculiar to the case.’ ” (Costco Wholesale Corp. v. Superior

Court, supra, 47 Cal.4th at p. 732.)

C. The Alleged Procedural Impropriety of the Petition

The CPRA provides that, if a trial court orders a “public official” to disclose

records, a “party” to the trial court proceeding may seek appellate review by filing a writ

petition. (§ 6259, subds. (a)–(c).) Grossman directed his underlying records request

solely to St. Croix, but then named both St. Croix and the Ethics Commission as parties

in his petition for a writ of mandate in the trial court. As a result, both St. Croix and the

commission are parties to the petition in this court. Grossman now argues the instant

petition is “void,” because the commission did not meet publicly to authorize its filing.

11

We disagree. The general provisions of the Brown Act cited by Grossman (§§ 54952.6,

54954.2, subd. (a), 54956.9) do not establish a meeting by the members of an affected

local commission or other body is a prerequisite to the exercise of the appellate remedy

expressly specified in the CPRA.

D. The Parties’ Requests for Judicial Notice

As noted, the trial court took judicial notice of Section 67.24 of the San Francisco

Administrative Code and section 6.102 of the San Francisco Charter; we have taken

judicial notice of sections 6.100 and 15.100 through 15.102 of the San Francisco Charter.

We deny the parties’ requests for judicial notice of other ordinance provisions, other

charter provisions, and other items, because those materials are not relevant to our

disposition of this matter. Accordingly, (1) City’s November 22, 2013 request for

judicial notice is granted as to exhibit B (S.F. Charter § 6.100) and exhibit F (S.F. Charter

§§ 15.100–15.102) and is otherwise denied; (2) Grossman’s December 23, 2013 request

for judicial notice is granted as to (a) the portion of exhibit 1 that includes section 67.24

of the San Francisco Administrative Code and (b) the portion of exhibit 2 that includes

sections 6.100, 6.102, and 15.100 through 15.102 of the San Francisco Charter, and is

otherwise denied; (3) City’s January 14, 2014 request for judicial notice is denied;

(4) Grossman’s March 7, 2014 request for judicial notice is granted as to (a) the portion

of exhibit 1 that includes section 67.24 of the San Francisco Administrative Code and

(b) the portion of exhibit 2 that includes sections 6.100, 6.102, and 15.100 through 15.102

of the San Francisco Charter, and is otherwise denied; and (5) City’s April 1, 2014

request for judicial notice is denied.

III. DISPOSITION

The petition for a writ of mandate is granted. Let a peremptory writ of mandate

issue directing respondent court to vacate the order granting Grossman’s petition for a

writ of mandate, and to enter a new order denying Grossman’s petition. Upon finality of

this decision, the temporary stay order is vacated. Costs in this original proceeding are

awarded to St. Croix and the Ethics Commission.

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______________________

Becton, J.*

We concur:

______________________

Dondero, Acting P.J.

______________________

Banke, J.

* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.

St. Croix v. Superior Court, A140308

13

Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Ernest H. Goldsmith

Counsel:

City and County of San Francisco Office of the City Attorney, Dennis J. Herrera, City

Attorney, Therese M. Stewart, Chief Deputy City Attorney, Vince Chhabria, Chief of

Appellate Litigation, Andrew N. Shen and Joshua S. White, Deputy City Attorneys for

Petitioners.

No appearance for Respondent.

Kerr & Wagstaffe LLP, Michael Kai Ng and Jasmine K. Singh for Real Party in Interest.

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