SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN DEGO, CE- DIWSSON

CFFR and Marcia Fritz,

Petitioners,

) Case No.: 20 10-00098768 ) ) ORDER GRANTING PETITION ) FOR WRIT OF MANDATE

v. ) ) California Public Records Act )

SDCERA, ) Hearing: Nov. 1,201 0,8:30 a.m., Dept. 72

Respondent. 1 1 )

1. Overview and Procedural Status.

This case presents a conflict between two bedrock principles of our democracy:

the public's right to know information about the finances and operation of its

government, and the individual citizen's right to privacy. The petition filed August 23,

201 0 alleges a single cause of action for mandamus under Government Code section

6258, which provides:

"Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of

competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or

class of public records under this chapter. The times for responsive pleadings and for hearings in these

proceedings shall be set by the judge of the court with the object of securing a decision as to these matters

at the earliest possible time."

CFFR, which alleges it is a non-profit organization dedicated to educating the

general public about public employee retirement benefits, seeks an order requiring

SDCERA to turn over the records demanded in CFFR's demand letter of 712311 0.

SDCERA is an association established by the County Employees Retirement Law of

1937, responsible for the managing of the retirement fund and the maintaining of records

of retired employees.

Specifically, for each retireebeneficiary in pay status whose gross monthly

pension benefit exceeded $8333 in any month in 2010, CFFR demands the following

information from SDCERA:

Name

Last employing agency

Amount of monthly benefit

Worksheet calculation of hislher benefit

CFFR contends SDCERA is obligated to divulge this information under the

Public Records Act, Govt. Code section 6250 et seq. SDCERA contends CFFR may

ultimately desire to publish the names of the beneficiaries receiving more than $8333

monthly on its website, in a section it calls the "$100,000 Club."

SDCERA does not contend it is anything other than a "local agency" covered

under the Public Records Act. SDCERA admits it has or could readily derive the

requested information, but objects to turning it over on various grounds. In the main, it

contends the requested records are an unwarranted invasion of personal privacy of the

retirees, and that the publication it contends is intended by CFFR would be an invitation

to financial elder abuse of the pension recipients.

Petitioners appeared exparte on September 23 to obtain immediate relief or an

expedited hearing date. In keeping with its obligation to set the matter "with the object of

securing a decision as to these matters at the earliest possible time" (and after receiving

input from both counsel as to available dates), the court specially set a November 1

hearing and imposed a briefing schedule. The papers filed by CFFR on September 22

were deemed (with CFFR's consent) to be the moving papers. SDCERA filed its return

by answer and its opposition papers on October 12. CFFR filed reply papers on the

afternoon of October 27. The court has carefblly reviewed all these papers.

2. Guiding Principles of Law.

The statute governing public access to governmental documents is the California

Public Records Act, contained in Government Code section 6250 et seq. Section 6257

confirms the right of "any person" to inspect all "public records" in the hands of any state

or local agency, except for records specifically exempted. Copley Press, Inc. v. Superior

Court, 6 Cal. App. 4th 106, 11 1 (4' DCA Div. 1 1992).

"Public records" is defined in broad terms, to include: "[Alny writing containing

information relating to the conduct of the public's business prepared, owned, used, or

retained by any state or local agency regardless of physical form or characteristics." ( 5

6252, subd. (d).) This broad definition is designed to protect the public's need to be

informed regarding the actions of government. Indeed, secrecy is "antithetical to a

democratic system of 'government of the people, by the people [and] for the people.' "

Poway Unified Sch. Dist. v. Superior Court (Copley Press), 62 Cal. App. 4th 1496, 1501

( 4 ~ DCA, Div. 1 1998), citing The California Public Records Act: The Public's Right of

Access to Governmental Information, 7 Pacific L.J. 105, 1 10-1 1 1 (1 976), and San

Gabriel-~ribune v. Superior Court, 143 Cal.App.3d 762,771 -772 (1 983).

The overall intent of the Act is "to safeguard the accountability of government to

the public ...." To verify accountability, individuals must have access to government files

to check for the arbitrary exercise of official power and secrecy in the political process.

Coronado Police Oflcers Ass'n v. Carroll, 106 Cal. App. 4th 1001 (4'" DCA Div. 1

2003) (Dissenting Opin. of Huffman, J).

In its decision in Copley Press, Inc. v. Superior Court, 39 Cal. 4th 1272, 128 1-82

(2006), the Supreme Court held:

"In 1968, the Legislature enacted the CPRA "for the purpose of increasing fieedom of information by

giving members of the public access to information in the possession of public agencies. [Citation.]"

(Filarsky v. Superior Court (2002) 28 CalAth 419,425). This purpose is evident fi.om the Act's very frst

provision, in which "the Legislature ... declares that access to information concerning the conduct of the

people's business is a hndamental and necessary right of every person in this state." (Gov.Code, kj 6250.)

To implement this purpose, the Act provides that "[plublic records are open to inspection at all times

during the office hours of the state or local agency and every person has a right to inspect any public

record, except as hereafter provided." (Gov.Code, 8 6253, subd. (a).) The term "[plublic records" is broadly

defmed to "include [ ] any writing containing information relating to the conduct of the public's business

prepared, owned, used, or retained by any state or local agency regardless of physical form or

characteristics." (Gov.Code, 9 6252, subd. (e).) The term " '[llocal agency' includes a county ... or any

board, commission or agency thereof." (Gov.Code, § 6252, subd. (a).) Under these defmitions, the County

of San Diego [is a] local agenc[y] under the CPRA."

Balanced against the public's right to know is the right to privacy. See Copley

Press, Inc. v. Superior Court, 39 Cal. 4th 1272, 1282 (2006). The Public Records Act

takes this into account, and contains several exemptions designed to protect the privacy

of individuals.

Section 6254's "exemptions are to be narrowly construed [citation], and the

government agency opposing disclosure bears the burden of proving that one or more

apply in a particular case." Bd. of Trustees of Califonia State Univ. v. Superior Court,

132 Cal. App. 4th 889,896 (4' DCA Div. 1 2005), citing County of Los Angeles v.

Superior Court (Axelrad), 82 Cal.App.4th 8 19, 825 (2000). Judicial decisions

interpreting the Act seek to balance the public right to access to information, the

government's need, or lack of need, to preserve confidentiality, and the individual's right

to privacy. Copley Press, supra, 39 Cal. 4' at 1282, citing American Civil Liberties

Union Foundation v. Deukrnejian, 32 Cal.3d 440,447 (1982).

The public has a strong interest in documents pertaining to the use of public

funds. Coronado Police OfJicers Ass 'n v. Carroll, 106 Cal. App. 4th 1 00 1, 1 0 1 1 (4' DCA

Div. 1 2003), citing Connell v. Superior Court, 56 Cal.App.4th 601,6 16-61 7

(1 997)(public has interest in records pertaining to government's conduct in managing

public revenues).

Appellate review of a trial court order is "independent on issues of law, and

follows the substantial evidence test with respect to any issues of fact." Bd of Trustees of

Calgornia State Univ. v. Superior Court, 132 Cal. App. 4th 889, 896 (4th DCA Div. 1

2005), citing City of Hemet v. Superior Court, 37 Cal.App.4th 141 1, 141 6 (1 995); see

also N. County Parents Org. v. Deptt ofEduc., 23 Cal. App. 4th 144, 149 (4th DCA Div. 1

1994)(0pin. of Huffinan, J.).

3. Request for Judicial NoticeEvidentiarv Objections.

The court grants SDCERA's request for judicial notice filed October 12,2010

under Evid. Code sections 450,452(c) and 453, as well as Govt. Code section 9080. See

Quintano v. Mercury Cas. Co., 1 1 Cal. 4th 1049, 1062 n. 5 (1 995); Hutnick v. USF&G

Co., 47 Cal. 36 456,465 n. 7 (1998); In re Jesusa V., 32 Cal. 4th 588,650 (2004);

Kaufinan & Broad Communities, Inc. v. Performance Plastering, Inc., 133 Cal. App. 4"

26,3 1-38 (2005).

The court notes that judicial notice is a limited doctrine, and does not allow the

court to find the truth of the assertions contained in most judicially noticed documents.

See Day v. Sharp, 50 Cal. App. 3d 904,914 (1975); Fremont Indemn. Co. v. Fremont

Gen. Corp., 148 Cal. App. 4' 97,113 (2007); Cruz v. County of Los AngeZes, 173 Cal.

App. 3d 1131,1134 (1985).

CFFR began its Reply brief by objecting to certain portions of the declarations

offered by SDCERA. The objections fail to comply with CRC 3.1354(b) and (c); they

are overruled not for this reason, but because they lack merit. First, CFFR objects to &l

the declarations, contending (apparently) that they should be disregarded completely

because CFFR has not had the chance to cross examine the declarants. This argument is

specious. Upon receipt of the opposition papers, CFFR could have sought a continuance

so it could take the depositions of the declarants; it did not do so. Further, the discussion

of the rules applicable to limited jurisdiction cases (Reply 2:21-26) is disingenuous; it

ignores the fact that proceeding by way of declaration in writ cases is very well

established. See Cal. Civil Writ Practice (4th Ed. 2009) sections 5.101,7.2, 8.20, and

9.29, citing CRC 3.1 103(a)(2) and AFSCME v. MIYD, 126 Cal. App. 4th 247,263 (2005).

Second, CFFR objects on relevance grounds to "several" declarations (Reply at

2:27), but does not specie which ones. This objection is overruled. Third, CFFR objects

to the Rice declaration on several grounds, the first being that the meeting Rice describes

"was held on a Thursday at 8:30 a.m. when retirees and public employees could attend,

but taxpayers would be at work." (Reply at 3:6-8) CFFR's apparent contention that

retirees and public employees are not also taxpayers is, bluntly, false and insulting to the

many retirees and public employees who also pay their fair share of taxes. More to the

point, the apparent legal objection is hearsay; the objection is overruled, as it is clear to

the court the evidence is offered for a non-hearsay purpose. The same is true of the

Murphy and Mallett testimony, and the hearsay objections to these declarations are

overruled.

No ruling is necessary on CFFR's objections to SDCERA's allegedly false

description of county employee pensions (Reply at 4-9, because the structure of those

pension plans is not important to the court's ruling on this writ application.

CFFR next takes SDCERA to task (Reply at 5) for falsely claiming that CFFR

intends to publish the data it receives on it website, as an addition to the existing

"$100,000 Club." In preparing the tentative ruling published on October 29, the court

assumed that CFFR wants the information so it can use it, and noted that nowhere did

CFFR undertake not to add county pensioners to the "$100,000 Club" at some point in

the future. Indeed, the court observed that page 17, line 17 of the Reply seemed to

explicitly keep open CFFR's options along these lines. This changed at the November 1

hearing, as is discussed more fully below.

CFFR next objects, in rather a rather diffuse and unfocused manner, to SDCERS'

evidence regarding fraud and elder abuse. This objection lacks merit. CFFR has known

for some time that SDCERA contended that providing retiree names could make those

retirees targets of the unscrupulous; this argument was included in footnote 2 of its 9/23

filing. It was up to CFFR to obtain declarations to negate the Greenwood and Reyes

declarations. The fact that it did not do so, and that those declarations stand unrebutted,

certainly does not mean the declarations should be stricken.

4. Reauest for Oral TestimonyIStatement of Disqualification.

CFFR began the hearing on November 1 by requesting leave to call its board

member, president and co-petitioner, Marcia Fritz, as a witness. As the court noted on

the record during the hearing, the leading treatise in this area, Cal. Civ. Writ Practice (4th

Ed. 2009) states, at section 9.30, page 226: "To present oral testimony, a party must seek

permission from the court and comply with Cal. Rules of Court 3.1306(b). ... The burden

ofjustifying oral testimony at a hearing on the merits of a writ petition is a heavy one ... ."

It was undisputed that CFFR had not complied with even the spirit of CRC 3.1306(b) in

any respect, and had not given the court or opposing counsel any notice of its intent to

call Ms. Fritz. SDCERA objected on the grounds that the absence of notice was

prejudicial, and the court agreed. CFFR suggested it could not have given the requisite

notice because its counsel did not see the tentative ruling until Saturday, October 30.

This assertion lacks merit, as CFFR could easily have complied with Rule 3.1306 when it

had reviewed and digested the opposition papers (or at the latest when it filed its rieply).

The reason for Rule 3.1306 is easy to discern: beyond allowing the court to estimate the

length of time needed for a specific hearing, it gives an opposing party time to prepare to

cross examine andlor to obtain the attendance of rebuttal witnesses. In other words, the

Rule prevents gamesmanship and a denial of due process to the party who is unprepared

due to a lack of notice/compliance with the Rule.

In light of the foregoing, the court properly exercised its discretion to deny

CFFR's untimely request for oral testimony, as it found the request procedurally infirm

and found that CFFR had failed to carry its burden of justifying the oral testimony. The

latter ruling is further supported by 1) the offer of proof made (at the court's invitation)

by CFFR's counsel; and 2) by the complete transcript of the Fritz deposition (discussed in

more detail below).

In view of its consideration of the Fritz deposition and court's disposition of the

petition, the court denies as unnecessary CFFR's request for a continuance of the hearing

so that it could properly comply with CRC 3.1306.

Immediately after the court denied CFFR's request to call Ms. Fritz, CFFR filed

and served a "Verified Statement of Judge's Disqualification and Request for Recusal

(CCP 170.3)." The court, after reviewing the Verified Statement, held that it

demonstrates no grounds for disqualification. Therefore, the challenge was stricken for

the reasons cited below.

Challenges filed pursuant to CCP section 170.1 are adjudicated under the

procedures set forth in section 170.3. Pursuant to section 170.3, if a judge who should

disqualify himself or herself fails to do so, any party may file with the clerk a verified

written statement setting forth facts constituting grounds for disqualification. The

statement seeking to disqualify the judge "shall be presented at the earliest practicable

opportunity after discovery of the facts constituting the ground for disqualification."

CCP 170.3(c)(l).

Once objection has been made, the judge may, within 10 days after service of the

objection, "file a consent to disqualification" [$ 170, subd. (c)(3)]; or file "a written

verified answer admitting or denying any or all of the allegations.. . ." (Id.) Failure to take

any action is tantamount to consenting to disqualification. [§ 170.3, subd. (c)(4);

Hollingsworth v. Superior Court, 191 Cal.App.3d 22,26 (1 987).] However, if the

statement is untimely filed, has not been served, or on its face discloses no legal grounds

for disqualification, the judge against whom it is filed may strike it, so long as he or she

does so within the 10-day period prescribed in section 170.3, subdivision (c)(3) for filing

an answer. [§ 170.4(b).] In striking a challenge, the court is not passing on its own

disqualification, but instead is passing only on the legal grounds set forth in the Verified

Statement.

As noted above, section 170.3(c)(l) provides that the statement seeking to

disqualify the judge "shall be presented at the earliest practicable opportunity after

discovery of the facts constituting the ground for disqualification." Here, the main facts

upon which CFFR purportedly based the challenge were disclosed on the record in open

court pursuant to Canon 3E2 on September 23,2010. Yet CFFR waited until after the

court published a tentative ruling over a month later to file its challenge (and then, when

it did so, incorrectly recited the facts which were disclosed). A challenge for cause

be brought before substantive issues are brought before the judge alleged to be

disqualified. In Keating v. Superior Court, 45 Cal.2d 440, 556 (1955), the court held

"The reason for requiring a prompt claim of bias is that a party should not be allowed to

play fast and loose with the administration of justice by deliberately refiaining from

raising an objection, on the chance that he might get a favorable decision and still be free

to urge the objection as grounds for upsetting an unfavorable judgment." In Lagies v.

Coply, 1 10 Cal.App.3d 958 (1980) [disapproved on other grounds], the court held a delay

of only 5 days with a hearing pending was untimely. In this case, the challenge was

brought only after the undersigned published a tentative ruling that CFFR alleges shows

bias on the part of the judge. Further, the challenge was only brought after the

undersigned denied the tardy request for oral testimony (which a review of "Example 4"

of the challenge makes clear the petitioner knew verv well would be the correct ruling).

Based upon the authority set forth above, this challenge is untimely.

Further, there are well-established limitations on what evidence may be used to

establish bias under section 170.1 (a)(6)(A)(iii). Section 170.2 expressly provides that it

shall not be grounds for disqualification where the judge has "in any capacity expressed a

view on a legal or factual issue presented in the proceeding, except as provided in

paragraph (2) of subdivision (a) of, or subdivision (b) or (c) of, Section 170.1 ." Therefore, a legal ruling is insufficient to establish bias or prejudice, even if erroneous.

Dietrich v. Litton Industries, Inc., 12 Cal.App.3d 704,719 (1 970). Further, it is not

evidence of prejudice or bias when a judge expresses an opinion based upon actual

observances and in what he or she considers the discharge of his or her judicial duty.

Jack Farenbaugh & Son v. Belmont Construction, Inc., 194 Cal. App. 3d 1023, 103 1

(1 987); Shakin v. Board of Medical Examiners, 254 Cal. App. 2d 1 02, 1 1 6 (1 967).

It is quite clear from "Examples 1 - 3" of the challenge that it was based in part

on the tentative ruling. Thus, it is based on the court's carrying out of its duty to express

views on legal and factual issues presented in the proceeding. If the rule were otherwise,

no judge would be able to give tentative rulings, for fear that doing so would give rise to

a challenge. The loss to court efficiency and oral advocacy would be substantial. For all

the foregoing reasons, the challenge was properly stricken.

.5. Key Precedentpending Appellate Review in a Sister Case.

A recent decision by the Supreme Court, International Federation ofProfessiona1

and Technical Engineers Local 21 v. Superior Court, 42 Cal. 4m 3 19 (2007)("Local21"),

is properly a focal point of the briefing of both parties. In Local 21, a newspaper

publisher petitioned for a writ of mandate under the Public Records Act to require the

City of Oakland to disclose records indicating the name, job title, and,gross salaries of all

city employees who earned at least $100,000 in a specified fiscal year. Two public

employee unions intervened. The trial court granted publisher's petition. The unions

petitioned for a writ of mandate. The Court of Appeal denied the petitions. The Supreme

Court granted the unions' petition for review, superseding the opinion of the Court of

Appeal.

Chief Justice George wrote for the majority; there were three concurring and

dissenting opinions, but those opinions parted company with the majority's view in only

relatively minor ways. The Court held:

A. Disclosure of city employees' salaries was not exempt under the Public Records Act;

B. Disclosure of salaries did not violate the state constitutional right to privacy; and

C. Disclosure of peace officers' salaries was not prohibited by the statute governing

discovery of peace officers' records, disapproving City ofLos Angeles v. Superior Court,

1 1 1 Cal.App.4th 883.

Both sides argue that Local 21 supports their position. These arguments revolve

around the key distinction between the persons asserting privacy rights in that case

(current public employees) versus those whose rights to privacy are at issue in the present

case (retired public employees). This distinction brings into play a statute not considered

by the Local 21 court: Government Code section 3 1532. Section 3 1532 provides that

"individual records" of members of a county pension system "shall be confidential and

shall not be disclosed to anyone" except "upon order of a court of competent jurisdiction,

or upon written authorization by the member." SDCERA contends that section 3 1532

renders the records at issue categorically exempt under section 6254(k).

Thus, this case presents the question whether section 3 1532 commands a different

result from the one in Local 21 in a situation where the records sought relate to retirees

and not current public employees. This issue was apparently addressed in three or four

cases in other counties in the weeks and months leading up to the exparte hearing

described above; CFFR contends that three trial courts ruled against the county retirement

systems involved in those other cases, and ordered the records produced. CFFR did not

include the trial court rulings in its moving papers (although it apparently did send them

to SDCERA enclosed with Fritz' 7/23/10 demand letter). [Fritz 1011 Decl., Ex. 11

One of the four trial court rulings was stayed, and is presently the subject of a

pending petition for a writ of mandate in the Third District Court of Appeal: Sacramento

CERA v. Superior Court, No. C065730. SDCERA states in its Answer filed 10/12/10

that the issues presented in the Sacramento CERA case are identical to those presented

here. On its own motion, the court takes judicial notice under Evid. Code section

452(d)(1) of the docket information in the Sacramento CERA case, which is available at

http://appellatecases.courtinfo.ca.gov. The excerpt from the 8/26/10 stay order in the

docket supports the contention that the issues which confront this court are similar to

those now being considered by the Third District Court of Appeal. As of the date of this

ruling, the docket does not disclose a decision or a determination as to whether oral

argument will be permitted (and if so, when). At the November 1 hearing, counsel for

the petitioner said a decision is "at least a month out."

5. Discussion.

Although it waived any true "jurisdictional" challenge by filing a general

appearance, SDCERA contends this court is not "a court of competent jurisdiction"

within the meaning of section 3 1532 because there is no mechanism in the Government

Code for individual retirees to join the case to protect their due process rights [Oppo. Br.

at footnote 21. This argument lacks merit for at least four reasons. First, the court is

satisfied that SDCERA has vigorously raised the privacy rights of the 350 individuals

who SDCERA claims would be affected by CFFR's demand (even the four pensioners

who, according to Exhibit D to the Boyd Declaration, did not object to providing the

information CFFR wants). Second, SDCERA ignores CCP section 387, which allows

intervention upon timely application by any person with an interest in the action or

proceeding. According to paragraph 11 of the Boyd Declaration and Exhibit E thereto,

each affected retiree has received written notice of this lawsuit; none have elected to

intervene (likely because they feel their interests are being adequately protected by

SDCERA). Third, consistent with its obligation to construe different portions of the

Government Code in a harmonious and contextually logical fashion [DeYoung v. City of

San Diego, 147 Cal.App.3d 1 1,18 (4" DCA, Div. 1 1983), overruled on other grounds in

Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal.4th 1, 15 (1 998)], the court

concludes that the "competent" court envisioned by section 3 1532 is the court charged

with conducting the delicate balancing required by section 6255 and Local 21 (42 Cal. 4"

at 338-339) in an action brought under section 6258. Fourth, this is a creative re-labeling

of an argument already considered and rejected in the Local 21 case:

Local 21 also contends that before individually identified salary information may be disclosed, section

6254, subdivision (c) must be applied on a case-by-case basis, taking into account the privacy interest

peculiar to the individual employee ... The approach proposed by Local 21 would reverse the presumption

of openness contained in the Act.

Having determined that this court has authority to proceed to address the merits,

the court now turns to the careful balancing of competing interests required by the

authorities summarized above.* As the Supreme Court held in Local 21,

Openness in government is essential to the hnctioning of a democracy. "Implicit in the democratic process

is the notion that government should be accountable for its actions. In order to verify accountability,

individuals must have access to government files. Such access permits checks against the arbitrary exercise

of official power and secrecy in the political process." In adopting the [Public Records] Act, the

Legislature declared that "access to information concerning the conduct of the people's business is a

fundamental and necessary right of every person in this state." As the result of an initiative adopted by the

voters in 2004, this principle is now enshrined in the state Constitution: "The people have the right of

access to information concerning the conduct of the people's business, and therefore, ... the writings of

public officials and agencies shall be open to public scrutiny." (Cal. Const., art. I, 5 3, subd. (b)(l).)

42 Cal. 4" at 328-29 (some citations omitted). CFFR contends that only with

disclosure of the information it seeks can it conduct further research and inform the

public of abuses CFFR perceives in the area of public pensions. For its part, SDCERA

* In doing so, the court focuses on what it perceives to be SDCERA's main argument under sections 3 1532 and 6254(k). The court rejects SDCERA's argument under Financial Code sections 4050-4052, because it finds, based on a common sense reading of the phrase "financial institution," that SDCERA is not one. The court also rejects SDCERA's argument under Civil Code section 56 et seq., because, as clarified at the November 1 hearing, CFFR does not seek this information. Moreover, the court can, by ordering redactions, prevent any arguable transgression of the Confidentiality of Medical Information Act. See infra p. 24. Finally, the court rejects SDCERA's argument under Penal Code section 832.7, finding that the Local 21 decision precludes reliance on this statute.

co~tends that, far from informing the public in a productive way, CFFR seeks to apply

the "scarlet letter" of a $100,000.00 pension to retirees who worked hard over long and

dedicated careers of public service, at salaries less than could have been had in the private

sector. SDCERA adds that these retirees had no control over the structuring of the

retirement system, and in any event, their vested rights cannot now be changed. Thus,

SDCERA argues, CFFR's addition of the SDCERA retirees to the $100,000 Club would

confer nothing of value to the debate over public pension benefits, and the retirees'

privacy interests overcome the public's right to know.

The Local 21 Court considered and rejected a similar argument:

Of course, we recognize that many individuals, including public employees, may be uncomfortable with the

prospect of others knowing their salary and that many of these individuals would share that information

only on a selective basis, even within the workplace. Nor do we question that public disclosure of an

individual's salary may cause discomfort or embarrassment. Nonetheless, in light of the strong public

policy supporting transparency government, an individual's expectation of privacy in a salary earned in

public employment is significantly less than the privacy expectation regarding income earned in the private

sector. To the extent some public employees may expect their salaries to remain a private matter, that

expectation is not a reasonable one and is, accordingly, entitled to diminished weight in the balancing test

we apply under section 6254, subdivision (c). The "customs, practices, and physical setting surrounding

particular activities may create or inhibit reasonable expectations of privacy." *** "A 'reasonable'

expectation of privacy is an objective entitlement founded on broadly based and widely accepted

community norms." *$* The "broadly based and widely accepted community norm[ 1'' applicable to

government employee salary information is public disclosure.

42 Cal. 4' at 33 1. Thus, the question once again becomes, even leaving aside

consideration of section 3 1532, whether the Supreme Court would find that the balance

tips the other way simply because the employees in question are retirees in pension pay

status rather than current public employees. A further reading of the majority opinion at

least arguably suggests that it would not, because the court went on to discuss two

Attorney General opinions, more than two decades apart, which taken together suggest

that the active or retired status of the employee does not matter:

Well before the Act was adopted, the Attorney General stated that '?he name of every public officer and

employee, as well as the amount of his salary, is a matter of public record." (State Employees' Retirement

Act, 25 0ps.Cal.Atty.Gen. 90,91 (1955) [concluding that state-paid retirement benefits are public

records].) Following adoption of the Act, the Attorney General consistently has maintained that same

position. (See County Payroll Recorcis as Public Records. 60 0ps.Cal.Atty.Gen. 1 10 (1977) [county payroll

records of names and amounts received by retirees are public records].

Local 21, supra, 42 Cal. 4th at 33 1.

Ultimately, however, more than any reliance on old (and, as SDCERA argues,

incompletely reasoned) Attorney General opinions, the Supreme Court seems to have

been motivated by the state of the evidence in the trial court:

Evidence submitted to the superior court by the Newspapers demonstrates that disclosure of salary

information has been the practice of both the state and of local governments, including not only the City of

Oakland itself but also the nearby City of Berkeley, the City and County of San Francisco, as well as

Contra Costa County. The Newspapers' evidence also establishes that it is a policy of the State Controller to

consider the name and salary of every public employee a matter of public record and to disclose this

information to any member of the public upon request.

The Newspapers submitted to the trial court numerous examples of articles published throughout the state

that used information concerning public employee salaries to illustrate claimed nepotism, favoritism, or

financial mismanagement in state and local government.

The City and the Unions failed to present any evidence establishing that the City's consistent past practice

of disclosing its employees' salaries created any safety or privacy problems for those employees that would

outweigh the public interest in disclosure.

Local 21 offered no evidence in the superior court supporting its assertion that the information at issue was

likely to be exploited by commercial interests in a manner that would invade the privacy of employees. As

the superior court observed, Local 2 1 has not introduced any evidence of adverse consequences resulting

from the disclosure of this information in the past, although the information regularly was published in a

local newspaper.

In the tentative ruling, the court contrasted the evidence offered in Local 21 with

the scant evidence CFFR initially offered, consisting of a single conclusory declaration

from Ms. Fritz. The court also noted that SDCERA has offered substantial evidence, in

the form of the Reyes and Greenwood Declarations, that criminals could use information

such as that sought by CFFR to target retirees for financial exploitation. The court

indicated in the tentative ruling, and still believes, that this evidence takes this case out of

the rule announced in CBS v. Block, 42 Cal. 3d at 652, and repeated in the Local 21 case.

This is so because in this case, unlike in Local 21, there is more than a mere "assertion"

or "conjecture" of endangerment; there is unrebutted expert evidence of it.**

SDCERA has also offered substantial evidence, in the form of the Rice, Murphy

and Mallett Declarations, as well as Exhibit C to the Boyd declaration, that both the

leadership of SDCERA and the majority of the rank and file of the affected retirees have

told SDCERA they object to the requested disclosures on various grounds. SDCERA has

also offered substantial evidence, in the form of Exhibits G and H to the Rice declaration,

** Even though the evidence is unrebutted, in light of CFFR's change of position at the November 1 hearing and consent to an order forbidding the inclusion of the SDCERA retirees on a "$100,000 Club" website, the court fmds, as is discussed more fully below, that the likelihood of unscrupulous "data mining" is significantly reduced. See in6a page 23.

that it already publishes substantial anonymous data regarding the numbers of retirees in

pay status (and at what level) on its website.

Further, CFFR's own evidence also suggests this case is distinguishable on

another important point from the Local 21 case. There, the court held, based on the

evidence in that case summarized above, that "the "broadly based and widely accepted

community norm[ 1" applicable to government employee salary information is public

disclosure." 42 Cal. 41h at 33 1. Here, by contrast, CFFR acknowledges in footnote 1 of

the Reply that three of the eight "county lists" it has received were "compelled by court

order." This, coupled with the vigorous fight being put up by the Sacramento CERA,

suggests that with respect to pensioners, voluntary disclosure is something other than a

"widely accepted community norm."

In short, the evidentiary showing by SDCERA in this case is far stronger than the

one made by the parties resisting disclosure in the Local 21 case. The question remains

whether this evidentiary showing is sufficient to override the presumption of disclosure

under the CPRA.

In the tentative ruling, the court stated that CFFR's evidentiary showing on the

key issue of this case - the linking of an individual's name with hisher pension amount -

was weak in comparison with the evidence offered by the newspapers in Local 21 and by

SDCERA here. The court believed that CFFR was simply unable to articulate a

meaningful public benefit from associating a pension amount with a particular retiree's

name. The court noted that in her declaration, Fritz,offered no specifics as to the "many"

abuses earlier versions of the "$100,000 Club" have uncovered, and, critically, no

testimony linking the identity of a payee with CFFR's ability to expose that wrongdoing.

The court noted that CFFR's counsel argued at the October 5 hearing that Fritz "wants to

compare pension payments to salaries and length of employment to look for abuses," and

noted that, while this is an admirable goal, the need for disclosure of individual retiree

names simply did not enter the evidentiary picture. From this, the court reasoned in the

tentative ruling 1) that the strong inference from the lack of any persuasive evidence to

the contrary was that CFFR wants identifying information solely so it can expose the

retirees by name to public ridicule during an economic environment when it has become

fashionable among some to lay the ills of society at the feet of public servants, and 2) that

if this was CFFR's only purpose, the balance of interests tips in favor of the retirees.

The foregoing observations were made based on the conclusory Fritz declaration

and on the excerpts fiom the Fritz deposition lodged on 10112 by SDCERA. Notably,

SDCERA did not lodge pages 21-29 of the deposition transcript as part of Exhibit A to

the Shaughnessy Declaration. At the time of the tentative ruling, the court had not, due to

the press of other court business, had the chance to review Exhibit 6 to the Bittle

1012711 0 Declaration. This consists of the complete, corrected and signed transcript of

the Fritz deposition. On pages 2 1-29 thereof, under questioning by SDCERA's counsel,

Fritz provides the missing information regarding the importance of having the retiree's

name. This changes the evidentiary picture markedly fiom the one the court perceived to

exist when it published the tentative ruling.

On page 21, lines 1-9, Fritz expresses the public interest that is served by having

the names. She elaborates on the "research" that is "facilitated" by having the names on

page 23, lines 17-19, and gives an example on pages 24 - 25 of the dead end she reached

by not having the names on a prior occasion. On pages 26 and 28 - 29, she describes in

detail why she needs the name of the employee.

Something else changed at the November 21 hearing: CFFR's explicit promise

never to publish the list it receives from SDCERA in the "$100,000 Club" website, and

more importantly, its explicit concession that the court is authorized to order it not to do

so. In light of this concession, the court believes a judicial estoppel would arise,

preventing CFFRRritz from taking a contrary position in the future. See Hanna v. Los

Angeles County Sheriff; 102 Cal. App. 4th 887,896 (2002)(elements of judicial estoppel).

In light of the foregoing, the court will order the records disclosed with the

proviso that neither CFFR nor Fritz may publish the surnames of the SDCERA retirees

on any internet page or other publicly available site. In doing so, the court recognizes

that it is conceivable that allowing CFFR the ability to conduct the further research it

wishes to do this might cause "discomfort or embarrassment" to the retired public

employee. The Supreme Court has already found that "to the extent some public

employees may expect their salaries to remain a private matter, that expectation is not a

reasonable one and is, accordingly, entitled to diminished weight in the balancing test we

apply under section 6254, subdivision (c)." Local 21, supra, 42 Cal. 4th 3 19,33 1. The

court is bound by its oath and the doctrine of stare decisis [Auto Equity Sales v. Superior

Court, 57 Cal. 2d 450,455 (1962)l to follow this binding precedent. The fact that, in

contrast to the current employees at issue in Local 21, the pension rights at issue here

cannot be revoked or changed is not enough to persuade the court that the Supreme Court

would rule differently in this case than it did in Local 21. In light of the Attorney

General opinions stretching back to at least 1955, the court concludes that the retirees

(like the employees in Local 21), by accepting public employment, accepted a reduced

expectation of privacy in their overall compensation packages. This is supported by the

case law cited on page 2 1 of the Reply.

The court finds that this determination strikes the proper balance between the

public's right to know and the retiree's diminished (but not extinguished) right to privacy.

This is so because the disclosure ordered by the court, with the protection (unopposed by

CFFR and Fritz) that their names not be added to the "$1 00,000 Club," will allow CFFR

to have the information it sought while making it much harder for an identity thief or

would-be violator of the statutes forbidding financial elder abuse to victimize the retirees.

It seems unlikely that such a malefactor would take the time to identify himselflherself to

either SDCERA or CFFR to request follow-up information, because such persons

obviously desire to avoid detection.

6. Decision.

CFFR's petition for a writ of mandate is granted (by way of alternative writ). The

court finds that this evidentiary record, although stronger than the one offered by the

unions in Local 21, fails to establish that the retirees' privacy rights clearly outweigh

CFFR's interest in receiving the information. Thus, SDCERA shall forthwith produce to

CFFR, at SDCERA's expense, a list of the 350 affected retirees in substantially the

following form:

Name Last Employing Agency Amount of Monthly Benefit

Susie Quigley SDSO $9000

John Andrews District Attorney $8650

Mary Peters County Counsel $8333

(Etc.)

The court further finds that SDCERA has established that it does not possess a

"worksheet calculation" of each retiree's benefits in the form demanded by CFFR, and

that production of the two page "Disability Retirement Calculation Summary Final"

exemplified in Exhibit A to the Boyd declaration, as well as lines 69 - 85 and 105-106 of

the attachment thereto (page 4 of Exhibit A) in redacted form, is feasible and will provide

CFFR with the information it needs to check for "unearned service credit, unwarranted

reclassifications ... and excessive pension amounts due to ... simple miscalculation." Fritz

Decl. filed 912211 0 at 1 i27 - 2:2. Thus, these records, with all personal identifying

information redacted, shall promptly be produced to CFFR at CFFR's expense. To be

more specific, the court orders the calculation summaries produced with the SSN and

DOB redacted on page 1, the beneficiary designation, financial institution and medical

program redacted on page 2, and lines 86 - 104 and 107 - 139 redacted on page 4. Pages

3,5 and 6 need not be produced at all, as CFFR stated at the hearing it "doesn't need"

this data.

The clerk shall provide copies of this memorandum to the parties' counsel forthwith.

IT IS SO ORDERED.

November L, 20 10 TIMOTHY B. TAYLOR

JUDGE OF THE SUPERIOR

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO I n COUNTY COURTHOUSE, 220 W. BROADWAY, SAN DIEGO, CA 92101-3814

HALL OF JUSTICE, 330 W. BROADWAY, SAN DIEGO, CA 92101-3827 FAMILY COURT, 1555 6TH AVE, SAN DIEGO, CA 92101-3294 MADGE BRADLEY BLDG., 1409 4TH AVE., SAN DIEGO. CA 92101-3105 KEARNY MESA BRANCH, 8950 CLAIREMONT NORTH COUNTY DIVISION, 325 S. MELROSE EAST COUNTY DIVISION. 250 E. MAIN ST.. EL

MESA BLVD., SAN DIEGO, CA 92123-1 187 DR., VISTA, CA 92083-6643 . CAJON. CA 92020-3941

I RAMONA BRANCH. ~ ~ ~ ~ ' M O N T E C I T O RD:. RAMONA.CA 92065-5200 I I SOUTH COUNTY D ~ V I ~ O N . 500 3RD AVE.,'C~ JUVENILE COURT. 2851 MEADOW LARK DR. JUVENILE COURT, 325 S. MELROSE DR., VIS UTIFF(S)lPETITlONER(S)

;hula Vista Ramona, California.

California Foundation for Fiscal Responsibility

DEFENDANT(S)/RESPONDENT(S)

San Diego County Employees Retirement Association

CLERK'S CERTIFICATE OF SERVICE BY MAlL (CCP 1013a(4))

NAME &ADDRESS NAME & ADDRESS

Timothy Bittle, Esq. Scott Metzger Howard Jarvis Taxpayers Foundation Robert Shaughnessy 921 Eleventh Street, Suite 1201 3043 4'h Avenue Sacramento, Ca. 95814 Sari Oienn Ca 971fl.1

JUDGE: Timothy Taylor

DEPT: 72 CASE NUMBER

201 0-98768

CLERK OF TI

4' h,/h

I, certify that: I am not a party to the above-entitled case; that on the date shown below, I served the following document(s):

3rder granting Petition for Writ of Mandate dated 11/2/10

Jn the parties shown below by placing a true copy in a separate envelope, addressed as shown below; each envelope was then sealed and, b i th postage thereon fully prepaid. deposited in the United States Postal Service at: San Diego Vista fl El Cajon

'ER

- w , - - . . d/ Andrea Taylor

ate: November 2, 2010 by /kx4tz/m u Dsputv

sc CIV-286(~ev. 12-02) CLERK'S CERTIFICATE OF SERVICE BY MAIL